BGHZ 7, 198 III. Civil Senate (III ZR 322/51) = NJW 1953, 700 = VersR 1952, 430
25 September 1952
Professor B.S. Markesinis
F.H. Lawson and B.S. Markesinis

The orphan plaintiffs claim compensation from the defendant for the damage they suffered from their mother’s death as the consequence of an abortion carried out by the defendant. She felt herself pregnant in May 1949 as a result of intercourse with Sp. The defendant, who practises as a doctor, was at her request ready to perform an abortion in consideration for a fee. For that purpose he visited Frau S at Sp.’s home and with his help operated on her. He felt, but misunderstood, a peculiar structure in her womb and thought he noticed the remains of an afterbirth. After douching the womb with Sp.’s help he placed the patient on a sofa, and ordered her to rest in bed for three days and to see him in his surgery in 14 days. He left the house a few minutes before 4 p.m. Some 20 to 25 minutes later the patient complained of severe pains in her abdomen. At her request, Sp. hurried to the defendant’s surgery, reported that Frau S was in pain, and obtained from him a pain-killer. When, after about an hour’s absence, he came home, he found that her condition had deteriorated further. When a gynaecologist was eventually called in, arriving about 6 p.m., he found a severe internal haemorrhage, so he arranged for an immediate transfer to a hospital; and after about three-quarters of an hour he operated and found a rent in the womb and ascertained that the womb artery had been torn. Although he bandaged the source of blood and made a blood transfusion, the plaintiffs’ mother died before the operation was complete.

The plaintiffs claimed compensation from the defendant in contract and delict for medical and hospital expenses together with payment of an annuity and also a declaration that they were entitled to be compensated for all further damage.
Both instances rejected the claim; the appellants demanded the case be sent for reconsideration.


1. The Court of Appeal agreed with the Landgericht that the defendant caused the death of Frau S from loss of blood by piercing the wall of her womb and thus damaging the womb artery. It came, however, to the conclusion that he was not at fault in causing the injury.

The experts were unanimously of the opinion that an injury such as happened here could have been inflicted by even the most conscientious and experienced medical man in the course of an abortion; in following it the Court of Appeal made no mistake of law. Thus, such an injury could, but need not, have resulted from a careless and improper use of the instruments. The Court of Appeal acted consistently in examining whether such a careless act of the defendant in the present case was to be inferred either according to the prima-facie evidence or by way of circumstantial evidence. It said no to both questions.

(a) Whether this was a typical course of events affording sufficient prima-facie evidence required, in the first place, a formulation of the results of experience and then its application to the present situation. Such a formulation is a conclusion of fact inferred from general circumstances and can, in these proceedings, be checked for correctness only in so far as it is drawn from established facts. The facts themselves cannot be checked; they must be proved by the person who seeks to found on them a prima-facie case. The burden of proof is thus on the plaintiffs just as the other party must prove the possibility of a deviation from the typical course of events. When, therefore, the Court of Appeal reached the result, on the basis of expert opinions, that ‘no formulation from the results of experience can be established that the piercing of a womb in an abortion can as a rule be traced to a careless use of instruments by a doctor’, the unassailable finding of fact followed, that according to medical experience the injury in question was ‘possible even with a careful use of instruments’ and could ‘find its explanation in the peculiar characteristics, not visible to the doctor, of the womb’. That under these circumstances experience afforded no prima-facie evidence was based on no error of law.

(b) The Court of Appeal considered that the defendant was at fault in not affording the required medical care after finishing the operation. But it declined to attribute fault to the general conduct of the defendant, which would also provide, as the plaintiffs contend, prima-facie evidence of a faulty use of the instruments and therefore of his being to blame for the injury.

The court took into account various surprising and irregular circumstances such as the use of a camphor injection before the operation; the suspicion that a miscarriage was beginning; the failure to recognize the rupture of the artery; the leaving of an alleged afterbirth in the womb; and finally the omission still to be discussed, of an immediate reference to a hospital. While it adhered to the opinion that they did not constitute errors in medical practice, it saw in both of the last circumstances two blameworthy omissions; yet it considered that they did not disclose a general prolonged lack of medical conscientiousness or care, and that there was, as a whole, no typical conduct justifying a prima-facie presumption that the defendant did the injury to the wall of the womb and the opening of the artery through a careless use of instruments.

Here also no objection can be taken on legal grounds to the Court of Appeal’s decision . . .

(c) It is on the other hand possible to treat fault in such a situation as an indication that the doctor was not careful in the operation itself. That point also was not missed by the Court of Appeal. But it considered the evidence insufficient to afford it the necessary certainty. It considered that the proved omissions predominantly disclosed a lack of conscientiousness in the after-care of the patient, whereas a fault in the abortion itself would consist in lack of care in the use of the instruments. The basis of the fault in the two cases would be too different to enable secure enough conclusions to be drawn from the one to the other. The court was entitled to value the indication as a means of information, and that valuation could not be checked in these proceedings, so that no legal error can be found to exist in its judgment.

II. The Court of Appeal, however, rightly found that the defendant was at fault in his neglectful conduct after finishing the actual operation. He ought not to have left a doubtful situation without getting rid of the afterbirth, and he ought, by that time, to have had the patient sent at once to a hospital. That he did not do so was described by the expert, Professor Ph., as ‘unintelligible’, and the Court of Appeal rightly agreed with him. Complications had ensued which required further treatment in hospital, in relation to which it was irrelevant whether the defendant was to blame for them or not.

The Court of Appeal likewise declined to infer liability for the consequences because it denied causality. It inferred indeed from the opinions of the experts that an immediate transfer to the hospital would have improved the patient’s chances of survival. But it held that death might have occurred even if there had been immediate transfer after the abortion and an operation without delay. It could ‘not decide beyond reasonable doubt that if the defendant had done his duty immediately after the operation or even when informed by Sp. that the patient was in pain, her life would have been saved’.

These considerations do not make it quite clear whether the Court of Appeal had sufficiently in mind what was needed to prove causation. According to longstanding case-law it is not the strict rule of evidence in § 236 ZPO but that in § 287 that applies here . . . Under § 287 ZPO the court is not prevented from being convinced by the evidence and the circumstances that there is an adequate causal connection, even if the possibility cannot without reasonable doubt be excluded that the damage could have occurred without the defendant’s fault. If, as here, the blameworthy conduct consisted in an omission, the question of adequate causation ought to be formulated as ‘whether that omission was in the ordinary way capable of producing a result, and not only under peculiar, quite improbable circumstances, not to be contemplated in the normal course of events’. It is not, therefore, a question of whether other, not remote circumstances could have produced the result, but whether the injurious consequence could not have occurred in the normal course, or rather would have been produced only by special circumstances of that kind. Here the Court of Appeal had merely found that a dutiful conduct would not certainly have prevented the result, and that finding cannot be regarded as sufficient to exclude the omission as the cause of the result. The Court of Appeal ought to have considered in accordance with § 287 ZPO—if need be after further questioning the experts—whether it could have produced such a result.

III. The Court of Appeal started from the position that the operation was an unlawful attack on the mother’s bodily integrity, and therefore an infringement of the protective enactments §§ 223, 218 StGB. Yet, it was unwilling to infer any liability from them because it did not see any causal connection between the operation and its fatal outcome. It explained that the defendant undertook the abortion as a doctor and carried it out according to the rules of medical art and science. Permitted abortions with the object of saving the life and health of the patient would be conducted in the same way. According to the expert, Professor Ph., injuries could occur outside the actual purpose of treatment. The doctor need not, however, as a rule take account of them when he started. In particular, complications dangerous to life were conditional on the intervention of peculiar or unfortunate circumstances, such as an opening of the womb artery through an injury to or spontaneous cleavage of the wall of the womb, which must in the normal course be disregarded. Even when such dangerous circumstances occur, the doctor would have means at his disposal to prevent a fatal outcome with some, though not absolutely sure, prospect of success. Thus, the possibility that an abortion undertaken by a doctor would lead to a patient’s death was too remote for the assumption of a causal connection, giving rise to liability, between the operation and its fatal outcome.

1. These explanations exaggerate the requirements for adequate causation. . . It need not be decided whether there are medical operations in which complications dangerous to life can be produced only through the intervention of quite unique, quite improbable circumstances which can be disregarded according to the regular course of things. For an operation such as an abortion this was evidently assumed neither by the expert nor the Court of Appeal, for both reckoned with the possibility of such dangers and omitted to consider them only because in this case the doctor had appropriate means at his disposal, to which however the Court of Appeal accords only ‘some, though not a certain prospect of success’.

If one starts from the position—as one must—that the entry of the aforementioned dangerous circumstances falls within the adequate consequences of an abortion, the further adequate causal connection cannot be denied on the ground that there was some possibility of preventing the fatal outcome. This denial of a causal connection is based on a fallacy similar to that which appeared in relation to the causality of the delayed transfer to the hospital. Once a danger to the patient’s life appeared in any way, no peculiar and quite improbable circumstances were needed to lead to death, but, on the contrary, medical skill was needed to prevent it. Whether the prospects of success in those attempts to avert it were more or less great cannot alter the fact that a failure is the adequate consequence of a danger to life.

2. Moreover, the liability of the defendant cannot be denied on the ground that there was no causal connection between the illegal operation and its fatal outcome. That connection would be unimportant only if the operation was not illegal on the ground that the deceased not only agreed to but expressly wished it. The Court of Appeal was able to refuse to go more deeply into the question of what significance that wish had. It confined itself to the statement that consent to an abortion is forbidden and therefore legally inoperative . . . A consent is inoperative not only when influenced by a defect of the will, but also when it is repugnant to a legal prohibition or good morals and is therefore invalid (§§ 134, 138 BGB). That presupposition is here affirmed by the Court of Appeal on the ground that an infringement of § 218 StGB makes both the doctor and the patient punishable.

It is also not a defence to a claim that a plaintiff is acting deceitfully and in bad faith if he claims damages from a person whom he asked to afford a particular kind of medical assistance, so long as he keeps within what he was asked for. This invocation of good faith must also be denied to one who so severely infringes a prohibition of the Criminal Code. The legal position is not altered by the fact that a portion of the public, for various reasons, demands an abolition of the prohibition.

3. By undertaking the operation, the defendant not only deliberately injured the body of Frau S, but also infringed the protective enactments contained in §§ 233, 218 StGB. Although the second paragraph aims in the first place at protecting the living embryo, it serves also to protect the pregnant woman; and that is enough to satisfy the conditions of § 823 II BGB. If, however, they are satisfied, it follows, as the Reichsgericht has pertinently said . . . that the defendant is liable for all the injuries caused by his operation, even if they are not his fault. That, contrary to the Court of Appeal’s opinion, there was a causal connection between the death of Frau S and the operation is shown above at (1).

For these reasons also the legal dispute is not yet ripe for decision, since the defendant can rely on the consent and wish of the deceased in so far as that, too, implied fault in the undertaking of the operation. As matters stood, if she had not energetically desired the operation, the defendant would not have performed it . . . That fault will have to be balanced against the defendant in respect of causality (§ 254 BGB), and the defence arising from it must affect the plaintiffs also in accordance with § 846 BGB.

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