BGH NJW 1958, 418 VIII. Civil Senate
10 January 1958
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Mrs Irene Snook
Professor B.S. Markesinis

The plaintiff was a patient in the neurological clinic of the Municipal Hospital in B between 25 May 1951 and 9 February 1952. He suffered from introspective-endogenous depressions. On 24 May 1951 he received electro-shock treatment and on 28 May 1951 he underwent a lumbar puncture. On 6 and 7 June the electro-shock treatment was repeated. In the course of it he suffered a fracture of the twelfth vertebra from which he recovered after having lain in plaster for six and a half months. Since then his right leg is paralysed and he suffers from intestinal and heart trouble. The medical expert of the Social Insurance Office of the Land regards him as incapable of work. The Court of Appeal of Bremen allowed the plaintiff’s claim for damages against the hospital of the defendant. A second appeal was unsuccessful for the following


The Court of Appeal has found that the plaintiff entered the clinic of the defendant as a patient supported by social security. It has held correctly that in these cases the legal relationship between the municipal hospital or clinic and the patient is of a private law nature. According to a constant practice of the Reichsgericht, followed by the Federal Supreme Court [references], the reception of a patient supported by social security creates a contract with the hospital in favour of the patient with the result that the patient acquires a right of his own to be treated expertly. If a doctor, who has been charged with the treatment of such a patient supported by social security commits a mistake culpably, the defendant as owner of the clinic is liable according to § 278 BGB for the mistake of the doctor appointed by him to perform the duties of the latter.

On the other hand, as the Court of Appeal has pointed out, a claim for pain and suffering against a doctor in charge on the ground of assault causing bodily harm cannot be based on § 278 BGB, but only on § 831 BGB, unless direct liability under § 823 BGB is in issue.

II. 1. The appellant is wrong in alleging that the plaintiff had validly consented to the electro-shock treatment and that this consent could only have been annulled in accordance with §§ 161 ff. BGB. This view would only be correct if

(a) the plaintiff had been aware of the typical dangers of electro-shock treatment and, in particular, of a fracture of the spine and if with knowledge of these dangers his consent had included these factors, or

(b) the doctor in charge could so understand and interpret the general conduct of the plaintiff in the particular circumstances of the case and having regard to the views current in human relations between reasonable people that the plaintiff was aware in outline of the dangers connected with shock treatment and that he had accepted the risk.

As to (a): It is a constant practice in cases where a passenger in a motor vehicle is injured that an exemption from liability based on the assumption of a risk can only be presumed if the victim went on the journey conscious of the possibility of danger and thus consented expressly or tacitly to a possible danger arising out of the driver’s conduct, whether culpable or not. Such a consent does not include dangers which the victim merely ought to have noticed [references]. Similarly, the Reichsgericht has pointed out [reference] that physical treatment by a doctor involving the corporeal inviolability of a patient is only covered by the contract and not illegal in so far as the consent of the patient extends to it. According to the Reichsgericht, [reference] before applying any physical treatment the doctor must make certain of the patient’s consent, which must be done based upon correct ideas concerning the nature and consequences of the treatment, even if naturally it does not cover all details. In [reference] the Reichsgericht upheld this view. The Federal Supreme Court has affirmed this view [reference], even if in the case before it the existence and the extent of the consent was not in issue, but whether it was void on the ground of illegality or contrary to bonos mores. These principles must be applied here. The Court of Appeal agrees [reference] . . . by requiring that a valid consent presupposes that the person who gives it knew the significance and the extent of the physical treatment by the doctor, at least in outline. No objections can therefore be raised against its legal conclusions.

As to (b): As the Reichsgericht [reference] and the Federal Supreme Court [references] have stated, the declared and not the subjective intention of the plaintiff counts. The Court of Appeal has found that the doctors administering the treatment assumed that the plaintiff had consented. However, according to the Court of Appeal they should have realized that real consent was lacking. They had therefore assumed negligently that consent had been given. This conclusion cannot be faulted in law. The court has thereby correctly made it clear that all the plaintiff’s declarations, oral, tacit, or to be presumed, could not and should not have been regarded by the doctors treating him, having regard to the attendant circumstances and according to good faith, as constituting a valid consent which included the possible dangers connected with the physical treatment . . .

2. The appellant denies that, as the Court of Appeal held, he was obliged to inform the plaintiff of the possible consequences of the electro-shock treatment. The Court of Appeal, in examining whether the doctor was under a duty to give information, rightly relied on the practice of the Reichsgericht according to which the substance and the extent of the duty to inform a patient is influenced by the degree of danger which the physical treatment affecting corporeal inviolability involves.

The duty to respect the freedom to allow physical treatment affecting corporeal inviolability cannot be denied on the ground that the relationship between patient and doctor requires the use of a special standard. It is the ethical task of a doctor to listen to the patient and to inform him in detail about undesirable side-effects of the therapy to be used. If the right of personality is properly appreciated, it cannot be said that this appreciation discloses a tendency, flowing from a mistaken notion of freedom, to enmesh in a network of legal provisions the special relationship between doctor and patient. On the contrary, this duty to give information concerning the possible injurious consequences of the therapy is part of a doctor’s calling which must not fail to pay regard to personality and corporeal inviolability. It is no answer to point out that in certain cases it may perhaps be advisable not to enlighten the patient. It is unnecessary here to determine the extent of the duty to provide information as regards diagnosis and therapy and what the doctor can and must say, for in the present case no information was given at all. The Court of Appeal has also rightly referred to the decision of the Reichsgericht [reference] where it is stated that as a matter of principle the individual must remain free to determine the fate of his body even in relation to his doctor [reference]. Naturally the doctor would attempt to spare the patient injurious fear and not to remind him unnecessarily of the possible serious consequences of his illness. However, this consideration had to give precedence to the necessity for the doctor to ensure before any physical treatment is begun that the patient has given clear consent, based upon accurate ideas concerning the kind and the consequences of the corporeal treatment. In so far as the information provided in order to obtain the patient’s consent led to a lowering of his mood or even of his health in general, it was an inevitable disadvantage which had to be accepted.

It is unnecessary here to discuss the cases decided by the courts concerning physical treatment without consent where danger lies in delay, for this situation does not arise here. Every doctor knows that physical interference with the inviolability of the patient against his will is not permitted. A doctor may not disregard this even if he disagrees from his professional point of view [reference]. The consent of a patient who is capable of giving it is required and, in principle, is to be obtained by the doctor, but does not, however, extend necessarily to treatment which, according to medical experience, especially in its after-effects, cannot be regarded as relatively harmless. The Court of Appeal has found that electro-shock treatment gives rise to such dangers so as to rule out the possibility of calling them atypical and not worth mentioning . . .

If, therefore, the Court of Appeal speaks in these circumstances of a danger which cannot be regarded as atypical, it has done so without committing an error of law. If, for this reason, it held that the doctor was obliged to inform the plaintiff of the therapy and its consequences, no criticism can arise against this either . . . Since during the period in question electro-shock treatment could not be regarded as harmless according to the details given in the literature, and particularly in the light of the contradictory conclusions about its results, the Court of Appeal has rightly held that the doctors engaged in the treatment were under a duty to inform the patient . . . The treatment in the absence of the consent required in this case, based on adequate information, is therefore illegal. The duty to inform the plaintiff remained, despite his tendency to depressions. It is another question how the patient is to be informed of the consequences, having regard to his personality and what details are to be intimated.

III. It is true that the extent of the duty to inform is disputed. The medical profession points out, in particular, that the relationship of trust between doctor and patient is an important factor. Nevertheless, a doctor cannot take the view, without incurring the charge of negligence, that he need not inform his patient at all about a therapy which is not without danger. Since this is a legal problem, a doctor cannot without further consideration follow the view which is occasionally expressed by medical circles, but is rejected by a constant practice of the courts [reference]. The fact that the plaintiff suffers from a psychotic illness could not induce the doctors to believe that they were entitled to interfere to a considerable extent with his physical inviolability without informing him [reference]. It is irrelevant in this connection whether . . . fractures normally heal without further complications . . . The Court of Appeal has recognized that the information need not always be complete in every detail. However, it holds the doctors responsible for having omitted to give any indications. It has not been suggested that at the time of the electro-shock treatment the clinic had gained special experience of its own which could have justified the opinion that this treatment was entirely free from danger . . . The Court of Appeal was therefore right in holding that the doctors treating the plaintiff had been negligent.

The finding of a causal nexus cannot be faulted either. It need not be decided whether any finding of fact would have been relevant to the effect that the plaintiff would have given his consent, had he been properly consulted, seeing that in the present case an illegal interference with his corporeal inviolability did in fact take place. Since the Court of Appeal was unable to make such a finding, having regard to all the circumstances, it has held correctly that the defendant is liable to the plaintiff for the consequences of the corporeal treatment in accordance with §§ 611, 275, and 278 BGB.

IV. The Court of Appeal was correct in law when it regarded the doctors administering the treatment as persons allotted the execution of a function in the meaning of § 831 BGB. The Court of Appeal credits the defendant with having selected with care the doctors administering the treatment. The Court of Appeal had held, however, with justification that the directors of such a clinic owe a duty of guidance and control, for the violation of which those setting up the clinic are liable. Naturally, purely medical questions of therapy cannot be subject to guidance by the administration in individual cases. The duty to provide information incumbent upon the doctors in respect of therapy . . . is not, however, a purely medical matter, exempt from the duty to give guidance, even if it need not be decided here whether the doctors in its employ must be given guidance as to the extent itself of the information. The Court of Appeal has rightly criticized the absence of all instructions and control in respect of the information to be given to patients. In the present case it has not been established whether a doctor was among the directors. If so, the defendant would be liable for the medical director’s failure to give the necessary instructions [references]. However, even if the directors of the clinic did not include a medical expert and only one doctor, in his capacity as chief medical officer, had been entrusted with the control and determination of all questions concerning medical matters, in the absence of any provision in the statutes, the defendant would be liable for the absence of control and for having culpably omitted to provide instructions. This would be all the more the case if neither the directors of the defendant had given the necessary instructions since they were not experts nor had any expert individual been charged with this task. Irrespective of the reason why the necessary control in this case or the instruction concerning the duty to provide information was lacking, the Court of Appeal was correct in also holding the defendant liable to pay damages for pain and suffering.

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