Liability in damages for infections to the patient – Review of the German courts’ practice


This paper consists of four parts and conclusions. First part deals with the notion, types, spread and importance of infection. Second part relates to the liability in damages attributable to infection. It deals with the issue if this type of liability should be tied with fault or be objective. It is pointed out at the end that, in the prevailing lawyers’ opinion, liability should be determined by the fault. However, because the liability would be narrow and inadequate in the common sense for the infection damage, liability of the organisation that represent broader framework, has been accepted. Third part of the paper deals with showing conditions for infection damage liability, i.e. hygiene omissions and their causation with the patient loss. Author explains difficulties‚ in proving for the patient as plaintiff and what means German courts used to relax litigation position of the patient and help her to realise her right to indemnity. Fourth part of the paper contains three specific cases of infection from the German court practice. German Federal Supreme Court resolved two of the three cases. One of its judgments is from 1991, and second from 2007. They contain the most important legal rules for litigation due to infection, which have become consisting part of the German Civil Code.
Author points out in the conclusion that procedure for indemnity due to infection is taking place with heavy difficulties both for the defendant and for the plaintiff, which is easily visible from the cases decided by the German courts. Reasoning from their judgments are formulated with a great skill and precision, which make them to look like wise dictum or utterance. They are valid for solved cases and, even more, have importance of the general legal principles. Therefore, author believed they must be part of the conclusion in this paper.