BGHZ 96, 111 VIII. Civil Senate (VII ZR 303/84) Neuherstellung-decision
10 October 1985
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, who had ingrowing toenails, was referred for out-patient treatment to the defendant city's hospital by the local Medical Union of which he was a member. He was made to sit down on a three piece settee, about 30 inches high, designed for gynaecological examinations but used as an auxiliary operating table, the back part having been fixed in a horizontal position. The second defendant, who had been the hospital's chief doctor for many years, gave the plaintiff a local anaesthetic, an injection of 2% Novocaine solution, in either one big toe or both. While waiting for this to work, the plaintiff suddenly lost consciousness and fell off the settee. He injured his cervical column in the fall, and has since experienced severe stiffness and loss of function in both arms. At the time of the accident the second defendant was standing at the door of the small operating theatre, speaking to his chauffeur, and the operating sister was quite close to the plaintiff, treating a patient for burns.

The plaintiff claims that the defendants are liable on the following grounds. No one had told him to lie down after the injection, so he was still sitting when he suddenly became unconscious. Had he known he should lie down, he would have done so, and not fallen. The second defendant should have realised and guarded against the risk of a sudden faint, in particular by making him lie down, but instead of taking any such steps he left the plaintiff to his own devices after giving him the injection. This was the sole reason for the accident, which had rendered him wholly and, as it seemed, permanently unfit for work. The plaintiff claims an annuity for lost earnings and damages for pain and suffering from both defendants.

The Landgericht rejected the claim, but the Oberlandesgericht held the plaintiff entitled to a monthly sum for loss of earnings and damages for pain and suffering. The defendants' appeal was successful only in part.


The plaintiff has a good contractual claim against the first defendant. The Reichsgericht always held that when a medical union refers a member to a hospital, the contract it makes with the hospital is one in favour of the patient whereby, under para. 328 BGB, the patient acquires a direct claim to proper treatment against the operator of the hospital (RGZ 165, 106). The first defendant entrusted to the second defendant the treatment of the union patient referred to it, so he became the first defendant's agent for performance and the first defendant is accordingly responsible to the plaintiff under para. 278 BGB for any fault committed by the second defendant in the execution of his professional medical activity.

Between the plaintiff and the second defendant there were no direct contractual relations. A hospital doctor's duty to undertake the proper treatment of union patients is normally owed only to the hospital which appoints him. But if a hospital doctor actually does embark on the treatment of a union patient and injures him in his health by infringing widely recognised rules of medical science, he is liable to the patient under paras 823 ff. BGB, whether or not he has any contract with the patient. It is immaterial whether the fault of the doctor is one of commission or of omission. The doctor may be under no obligation to the patient to treat him at all, but if he does so, he must avoid injuring him in body of health by breach of the rules of medical science (reference omitted).

In the instant case the Court of Appeal was right to find that it was the second defendant's fault that the plaintiff did not lie down after the injection; he should have told him himself or got the operating sister to do so.

The appellant contends that the failure to tell the plaintiff to lie down was not an adequate cause of the consequent harm. This is not so. The decisions of the Reichsgericht cited by the appellant on consequences for which the actor is not responsible because the causal connection is not adequate refer to consequences which occur only under extremely peculiar circumstances and through quite improbable concatenations of events and which can be ignored in the normal course of things. The consequences here, according to the expert, are not of this kind. On the contrary, the expert expressly emphasised that the reason for the good old rule that a patient should always be prone or supine during all manipulations and injections is precisely the possibility of a faint and a fall; it may be true that this rule cannot always b observed in practice and often is not, but such practical considerations cannot relieve the doctor of the charge that he ignored a duty of care. In such a case there can be no question of any interruption of the adequate causal connection. The appellant is also wrong to say that the Court of Appeal pitched the doctor's duty of care too high. The court was right to follow the expert, whose evidence was based on his knowledge of the rules of the medical art, and who stated in terms that there was undeniable negligence in this case unless perhaps it could be proved that the sister had been enjoined to attend to the patient and that the patient had disobeyed her instruction to lie down.

It follows that the plaintiff's claim for monthly payments is established against the first defendant under paras 276, 278 BGB and against the second defendant under para. 823 BGB. However, the second defendant alone is liable for the damages for pain and suffering under para. 847 BGB. Only under para. 831 BGB could the first defendant be held liable for such damages. The defendant city asserts that it has satisfied the requisite exculpatory proof. We agree. It was common ground that the second defendant had been chief doctor in the first defendant's hospital for many years and that the nurse had served as operating sister for nine years without any criticism. The plaintiff did not even assert, much less prove, anything that tended to show that the second defendant had been guilty of any fault during his twenty years service in the defendant city's hospital. Under such circumstances the hospital management cannot be expected to adduce any further exculpatory proof.

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