BGHZ 5, 321 II. Civil Senate (II ZR 78/51) = NJW 1952, 658 VersR 1952, 166
27 February 1952
Professor B.S. Markesinis
J.A. Weir

In late November 1946 the plaintiff hurt his right hand and went as a private patient to Dr D, a senior doctor in the defendant hospital. A few days later the plaintiff became an in-patient in the defendant hospital in one of Dr D’s private beds. On 9 December he there received a blood transfusion administered on Dr D’s instructions by an assistant, Dr J. The donor of the blood was A, who had given blood at the defendant hospital on many previous occasions. In 1948 it was discovered that both A and the plaintiff were suffering from syphilis. A had first given blood at the defendant hospital in early August 1946. On that occasion, the only test administered to him was a Wassermann reaction test, which proved negative: there was no visual inspection or any other kind of examination. Between August 1946 and November 1947, A gave blood on twenty-five occasions for twenty-four different recipients, twenty of these occasions being at the defendant hospital. During this period he had no further tests. Only in the middle of January 1948 did a different doctor cause blood tests to be made on A. In both cases the Wassermann test proved to be extremely positive, a fact which A communicated to Dr J on 14 February. Dr D then examined the plaintiff and ascertained that he too had syphilis.

The plaintiff asserts that his infection resulted from the blood transfusion effected in the defendant hospital on 9 December 1946. He asserts that the defendant was at fault in failing to follow the requirements of the Blood Donor Ordinance of 5 March 1940 [reference omitted] and in particular in failing to give A the prescribed tests. The serious result of this was that the disease was diagnosed in the plaintiff only at a very late stage, when the prospect of cure was much poorer. The plaintiff sought a decree that the defendant hospital, Dr D, and Dr J were liable to him as common debtors in respect of all the resulting harm, as well as for damages for pain and suffering.

The Landgericht held that the claim was well-founded. The Oberlandesgericht dismissed the defendant hospital’s appeal by separate decree. The hospital’s further appeal is now dismissed for the following


1. The appellant’s first objection is to the Court of Appeal’s finding that it was under any contractual obligation to the plaintiff regarding the provision of medical treatment. When the plaintiff became one of Dr D’s private out-patients in late November 1946, a contract for medical treatment was formed between him and Dr D, a contract which was not terminated on 7 December 1946 when the plaintiff was admitted to the defendant hospital. It followed, according to the appellant, that the contract whereby he was admitted to the hospital did not extend to any medical treatment, the plaintiff’s medical treatment being a matter for Dr D alone, but simply called for the provision of bed and board.

We cannot agree with the appellant.

(a) We need not decide whether the contract which the plaintiff made with the hospital on 7 December 1946 was what is called a ‘total hospital contract’ which involves the provision of medical treatment, for even if one accepts the appellant’s assertions that in a case like the present the contract formed between doctor and patient before the patient is admitted to hospital is not affected by his admission to the hospital, it does not at all follow that the contract by which the patient later enters the hospital covers only bed and board. On the contrary, the in-patient who has made an independent contract with his doctor for medical treatment and then makes a further contract with a hospital for nursing care expects the hospital to provide him with all necessary medical treatment which is not provided by the doctor himself but is usually provided by hospital staff using hospital equipment. This would include administering drugs, giving injections, taking X-rays, and much else. The hospital itself evidently has the same expectation, since it makes the equipment available and not only performs these tasks but charges for them as well. Into this category fall blood transfusions such as the present plaintiff had, for the apparatus required for blood transfusion is normally found only in hospitals and the transfusion itself is normally performed by someone other than the principal doctor. There is therefore no doubt that Dr J, the doctor who carried out the blood transfusion in this case, was acting as the defendant hospital’s contractual assistant. The defendant is therefore responsible under §§ 276, 278 BGB for any mistakes which Dr J made in carrying out the transfusion.

The Court of Appeal held that in performing the transfusion, the assistant, Dr J, failed to follow the safety procedures laid down in the Decree of 5 March 1940. Like any other doctor in charge of a blood transfusion, Dr J should have been aware not only of how the transfusion should be effected from the technical point of view but also what steps were required for it to be effected with the greatest safety. The Court of Appeal also held that in failing to follow the prescribed tests and other safety measures, Dr J was at fault and that this fault was a cause of the plaintiff’s being infected with syphilis. The Court of Appeal was therefore correct to hold that the defendant’s liability for faulty breach of its contractual duty to afford the plaintiff proper medical treatment was established.

(b) But the defendant’s contractual liability can be based also on the fact that it failed to take care to bring to the notice of the doctors in the hospital the provisions regarding the safety rules to be followed in giving blood transfusion. The failure was due to Dr L, who from 1940 to 1946 was the doctor in charge of the hospital and one of its statutory representatives under § 31 BGB. In this capacity he became aware of the Decree of 5 March 1940 regarding the precautions to be taken in blood transfusions, but he culpably failed to pass this information, which was important to all doctors, to the other departments in the hospital. It was his duty to do this even though his position vis-à-vis the other senior doctors was not that of a director. Since the hospital’s contractual duty remained unfulfilled by reason of a faulty omission on the part of one of its statutory representatives, the hospital is liable (RG DR 1941, 1937).

The Court of Appeal was thus correct to hold that the failure to inform the doctors in the surgical and gynaecological departments of the hospital of the provisions of the Circular of 5 March 1940 was a cause of A’s being used as a blood donor for the plaintiff and also of the plaintiff’s being infected by A’s blood. This was not, however, as suggested by the Court of Appeal and the appellant, a so-called organizational fault but rather a breach of the defendant hospital’s own duty through a member of its executive committee, the said Dr L. This failure is equally a basis for the defendant’s liability.

2. But Dr L’s negligence renders the defendant hospital liable to the plaintiff not only in contract but also, and more extensively, in tort. The Court of Appeal established that it was because the doctors in the surgical department of the defendant hospital were not informed of the security precautions required by the Minister in cases of blood donors that Dr D and Dr J were insufficiently apprised of these security measures and therefore failed to check that the prescribed tests had been administered to A. It was therefore a cause of syphilis being transferred from A to the plaintiff. It follows that the defendant is liable for the harm suffered by the plaintiff under §§ 31, 843 I, 847 I BGB as well.

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