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Frank Sarangi LL.M. - Attorney at Law and Specialist in Medical Law

1. August 2023

  1. The burden of proof principles developed for gross medical malpractice also apply in the rescue service.
  2. In the case of an omission, the plaintiff must always prove, according to the standard of § 286 ZPO, that the damage to health that occurred would not have occurred if the doctor had acted without error.


OLG Hamm; Urt. v. 26.10.2022 (11 U 127/21)

The Higher Regional Court of Hamm had to decide in the context of a rescue service mission whether it would constitute a breach of duty in the context of rescue services if a suitable key for a barrier in the forest or another tool for opening barriers at off-road mission sites was not carried on a rescue vehicle (RTW). As a result, the court answered this question in the negative but pointed out that the #evidence principles developed from #physician liabil-ity law would also apply in the case of gross medical malpractice in the ambulance service. The interest situation was the same in both constellations, since the protection of life and health of others was also at stake in the ambulance service, similar to the situation of the medical profession.

The plaintiffs in the case at hand were the heirs of the patient who had been resuscitated during the rescue service mission. This patient had collapsed during a walk in the woods and suffered a circulatory arrest in the context of a heart attack. The scene was about 300 me-ters behind a closed barrier to the forest path. Upon arrival at the scene, the RTW had to be parked in front of the barrier and the remaining way to the scene had to be covered on foot. Plaintiffs have taken the position that an #RTW must always carry any tools or keys neces-sary to open any obstructions. Had the RTW come to a stop immediately at the scene, there would have been no delay with the result that resuscitation would have been successful, and the patient would have survived.

After the carried out #evidence taking the court came to the conclusion that the complaint has no prospect of success. According to the hearing of the expert, the rescue service opera-tion was not optimal, but not faulty. There was no reversal of the burden of proof in favor of the plaintiff. It is true that in the present case the principles of reversal of the burden of proof in the case of gross medical malpractice could be applied, since the interests are the same. For this, however, a gross (treatment) error on the part of the ambulance service must first be established. Such an error does not exist. An RTW does not have to carry a bar-rier key or a bolt cutter etc. to open all potential obstacles. Such an obligation follows neither from DIN 3223 nor from the EN 1789:2014-12 standard.

The parking position of an RTW at the scene of an emergency is at the discretion of the RTW crew. In the specific situation and considering all the circumstances of the mission, the crew would have to decide which parking point for the ambulance is most appropriate.