The plaintiff's son was stabbed in a brawl and was taken to the defendant's hospital where the chief surgeon saw to the stab wound in the skin and stomach lining. The youth died. At the post-mortem it transpired that there were other wounds which had not been cared for, in the rear stomach lining, in the upper and lower intestine, and in the left kidney. The plaintiff asserted that the chief surgeon had caused her son's death by failure to attend to these wounds, and claimed damages for loss of support.

The Landgericht rejected the claim. Before the Oberlandesgericht the plaintiff sought to answer the defendant's proof of exculpation under para. 831 BGB, first by asserting that the defendant was itself to blame in failing to provide an assistant surgeon for the operation, and then by arguing that the defendant was personally liable in contact and must answer for the fault of the chief surgeon as its agent for performance. The plaintiff's appeal was dismissed.

Reasons

The plaintiff has no claim for damages against the defendant. There can be no claims under paras 242, 276 BGB for breach of contractual duty since there was no contract between the parties. The hospitalisation contract with the defendant under which the plaintiff's son received medical treatment and care in the hospital was made not with the plaintiff but with the local medical union (AOK). It is true that AOK did not actually refer the plaintiff's son to the hospital - this was an emergency case - but the contract was formed later when AOK agreed to pay the bill. It is not alleged that any contractual negotiations took place between the parties, and it is clear that there were none.

Nor did this contract have any protective effect for the plaintiff. Such protective effect only applies to the insured and not to his dependants (RG JW 1937, 926; BGHZ 2, 94). Normally the protective effect of a contract is limited to those persons who, by their connection with the creditor, come into contact with the debtor's performance, and whose safety is, to the debtor's knowledge, as important to the creditor as his own. This requirement is normally met only when the creditor has a joint responsibility for the protection and care of the third party (BGHZ 51, 91, 96; BGHZ 56, 269; BGH NJW 1959, 1676; 1970, 38). This is not the case with the plaintiff here. The decision of the Bundesgerichtshof to which the plaintiff refers (NJW 1959, 1676) is of no assistance to her, for in that case the third party was one of the plaintiff's employees, that is, a person who came into contract with the debtor's performance through the creditor and to whom the creditor owed a duty of care and protection. These preconditions are not satisfied here: the defendant's performance did not affect the plaintiff and AOK is not bound to afford her care and protection. Nor can it be said that the plaintiff was 'close to the performance' (Leistungsnähe). The performance which was owed by the defendant, namely medical care and attention in its hospital, did not affect the plaintiff. She was not the patient. Furthermore, the plaintiff in this case was in no relationship to the creditor AOK. She cannot acquire a claim against the defendant by founding on her own relationship with the third party, her son (under para. 328 BGB), or on his duties towards her.

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