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Lawyer Prof. Dr. Dr. Karsten Fehn

31. October 2022

Recently, the # Federal Court of Justice (judgment of 08.02.2022, Ref.: VI ZR 409/19) clarified what has always been clear to medical lawyers: a gross #treatment error is not synonymous with gross negligence and is also not an indication of gross #negligence.

Furthermore, the Federal Court of Justice made it clear that when assessing compensation for pain and suffering in #medical liability cases, the #satisfaction function should not be completely ignored and that an exclusive focus on compensation for the #pain suffered is legally incorrect. Even if the #doctor normally wants to help the #patient, the extent of his misconduct can influence the #compensation for pain and suffering in cases of particularly serious fault. In the view of the Federal Court of Justice, it makes a difference in this respect whether there is only a minor error or a “gross – possibly bordering on conditional #intent – fault”. This could “give the #claim its special character”.

By emphasizing the “satisfaction function” as a further element for the assessment of the amount of compensation for pain and suffering, the BGH is breaking new ground. In the previous instance, the #OLG Düsseldorf (judgment of 26.09.2019, Ref. 8 U 2/16) still based its decision on the short-term pain that the patient had already died the next morning. For some time now, there has been a tendency in recent case law (compared to older decisions) to increase the amounts of compensation for pain and suffering awarded. It remains to be seen whether the reference to the satisfaction function and thus a #punitive purpose borrowed from #criminal law has opened the door to the legal concept of “#punitive #damage” originating in Anglican law. In any case, this is unlikely to be compatible with the principles of German tort law. It also remains to be seen how which pain, which duration of pain and which intensity of pain can be “translated” into (pain) money.