Medical liability: no reversal of the burden of proof in the case of a (simple) breach of the duty to provide therapeutic information

In its ruling dated June 4, 2024 (VI ZR 108/23), the Federal Court of Justice (BGH) had to rule on the claim for damages brought by a premature baby who accused the treating staff at the hospital where he was born of not informing his parents of the increased risk of impaired retinal blood vessel development and retinal detachment in premature babies when he was discharged. The plaintiff had been discharged from hospital ten days before the originally calculated date of birth, up to this point there were no indications of so-called retinopathy of prematurity. The doctors recommended an ophthalmologic check-up only after three months. Three and a half weeks after discharge, the plaintiff was diagnosed with a detached retina; at this point, he could only be treated in one eye and with little success. One of the disputed issues in the proceedings was whether the focus of the doctor's negligence was on the lack of information about a short-term ophthalmological examination or on the resulting omission of an examination and diagnosis, which could possibly have led to timely treatment and prevented the plaintiff's extensive blindness. The reversal of the burden of proof in many medical malpractice cases regarding the causality of the medical error for the damage depends on this question.

The VI Civil Senate of the BGH has emphasized that the codification of its case law on medical liability, including the facilitation of the burden of proof, has not changed its case law. As in previous case law, a reversal of the burden of proof pursuant to Section 630h (5) sentence 2 of the German Civil Code (BGB) requires an established error in the assessment or securing of findings. If the breach of duty lies in a breach of the duty to provide therapeutic information or clarification, Section 630h (5) sentence 2 BGB cannot apply, even if the failure to provide information leads directly to the failure to obtain medically necessary findings. Furthermore, the BGH reiterates that such a process may not be split into two different errors.

In addition, the VI Civil Senate clarifies that it still does not consider an extension of the facilitation of the burden of proof for simple diagnostic errors to other treatment errors to be appropriate or justified.

According to the BGH, the distinction between an error in providing therapeutic information and an error in making a diagnosis must continue to be made according to the focus of the medical malpractice. If the treating physician informs the patient of a necessary examination and merely omits to inform the patient of its urgency, this is generally only a breach of the duty to provide therapeutic information. This is because the focus of the reproachability lies in the omitted warning to ensure the success of the treatment, not in the omitted (or delayed) findings themselves.

The Federal Court of Justice referred the case back to the Court of Appeal in order to give the defendant hospital operator the opportunity to comment on the newly raised legal aspects. According to the findings made so far, however, the focus of the reproachability of the medical misconduct lies in the failure to make a medical report as such. In contrast to previously decided cases, in the present case the doctors had not directly initiated a further diagnostic examination and at the same time thwarted this by providing false information. However, due to the high risk of blindness, the treating physicians at the defendant's hospital should have arranged for a timely ophthalmologic examination, for example in the context of post-inpatient treatment or by arranging an appointment with an ophthalmologist providing further treatment.