BGH NJW 2001, 2798 VI ZR 353/99 (Hamm)
31 January 2001
Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Professor B.S. Markesinis


According to the appeal court's view, the defendant is liable to the claimant in tort because of a culpable absence of explanation and, in respect of material damage, for culpable violation of the duties of care under the treatment contract as well.

The explanation made by the defendant had been insufficient simply because the defendant, according to the evidence, did not adequately draw the claimant's attention to the most serious risk of the operation, which was the risk of paraplegia. The explanation was accordingly deficient merely because the basic explanation was not made. But, besides this, the declaration was deficient because the claimant had not been warned of the risk of impotence which could occur, according to the observations of the experts appointed by the court, even on a properly conducted laser operation of the kind in question here. Finally the defendant had also demonstrated plausibly and comprehensibly that he would have found himself in a real conflict of decision in making a sufficient explanation. As the claimant had not yet undergone the whole of the broad spectrum of conservative treatment, he was hardly likely to have had the operation on the 9th March 1995 carried out in the knowledge of the risk of paraplegia and / or impotence. Finally there was no doubt that the paresis of the peroneus which the claimant had suffered, together with its consequences, as well as the impotence, could be traced back to the operation of the 9th March 1995.

II. In the outcome the appeal court judgment withstands legal examination in the appeal in law.

1. The appeal judgment is already supported by the fact that the defendant had - indisputably - not explained to the claimant about the risk of impotence. The appeal court considers, on the basis of the experts' opinions, that there is a duty to explain about this risk. It became convinced as a result of these opinions that the claimant could have become, and did on fact become, impotent as a result of the actual operation. It also became convinced that the claimant would have decided against the operation if he had known of this risk. If the required explanation would therefore have led to the avoidance of the operation, it is justified in the circumstances of this case to attribute all its consequences to the defendant.

The arguments raised by the appeal in law against the relevant findings of the appeal court are unsuccessful.

In this connection the appeal court has followed, in a factual assessment which is free from legal error, the statements of the claimant and his wife with reference to this, in combination with the opinions (which were in this respect in agreement) of both the experts appointed by the court. It has given preference to these opinions over the contradictory opinion of the private expert Professor Dr. H appointed by the defendant. His statements are in essence in agreement with the further private opinion of Prof. Dr. S, which was added to the documents by the defendant after the conclusion of the oral hearing, and was considered at the oral examination of the court experts. The appeal court was therefore - contrary to the view of the appeal in law - neither required to obtain a further opinion in the sense of § 412 of the ZPO (Civil Process Order) nor to examine again the experts appointed by the court on this subject...

2. In this situation, it does not matter whether the defendant - as the appeal court thinks - would also be liable because he did not give the claimant any indication about the most serious risk possible from the operation, namely the risk of paraplegia. The appeal court has considered this to amount to failure to give a basic explanation. It is not, however, a question of this in the present case, as is explained under b.

a) It can be left open whether an explanation has been made to the claimant about the risk of a paresis of the peroneus, which he has indisputably suffered. The appeal court has left this question open, so for the appeal in law proceedings it is necessary to assume that an explanation about this risk has been given. But then the principles from the Senate's judgment of the 15th February 2000 (reference omitted) would apply (which admittedly could not have been known to the appeal court when it issued the disputed judgment). This Senate has there observed that on the realisation of a risk which has been explained to the patient, as a rule it is irrelevant whether other risks - which were not realised - needed to be mentioned as well; the patient had given his consent in the knowledge of the risk realised later. If the patient has by his consent accepted the risk which later occurred, then, on application of a method of consideration which takes into account the protective purpose of the duty to explain, no liability can be derived from the realisation of this risk. This could raise the question which was left open by the appeal court of whether the claimant was actually warned about the risk of a paresis of the peroneus. But it does not matter in this case, because the absence of the explanation discussed above at 1 shapes the defendant's liability for the consequences of the operation as a whole.

b) In the light of the special features of this case, it is also - contrary to the appeal court's view - not a question of a basic explanation not being given. The Senate has only invoked this concept so far, as a basis of liability where there is a mistake in an explanation, for a quite special group of cases. In these cases - as for instance in the judgment of the 14th November 1995 (reference omitted) - there was an extremely rare risk which there was no duty to explain; but the risk then was realised following the operation. If in such a case the patient has not had an explanation about the risk concerned, this amounts to absence of a basic explanation, if the patient has not even been warned about the most serious risk possible, so that he could not imagine the seriousness and scope of the operation. In such a situation, attribution of liability to the doctor can be justified because of absence of a basic explanation, even though the harm for which he must assume liability has arisen from a risk which he did not have to explain.

But that is not the position in this case. Here the liability of the defendant arises anyway from the absence of the explanation as set out above at 1, so that, for that reason alone, no final decision is needed as to whether it could be based on further failures to explain.

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