In a nutshell:
In May 2025, the Federal Court of Justice (BGH, judgment of May 15, 2025 – VUI ZR 417/23) had to rule on a case involving an error in dispatching by a control center. In its ruling, the BGH stated that in the event of “culpable gross negligence” of duties of care by a dispatcher in a control center, the dispatcher’s employer must regularly prove that this “culpable gross negligence” was not the cause of the damage to the patient’s health. As far as can be seen, the ruling caused quite a stir and led to some uncertainty. However, there is no reason for this.

The initial case – what happened?
A total of five defendants were involved in the case. All of the defendants were local authorities that were responsible for the control center. Defendants 1) to 3) were based in Schleswig-Holstein, while defendants 4) and 5) were based in Mecklenburg-Western Pomerania. De-fendants 1) and 4) had an agreement on administrative assistance for certain cases. This agreement stipulated that Defendant 4) had to forward incoming emergency calls to De-fendant 1) if no suitable rescue resources were available in Defendant 4)’s area of responsibi-lity. Under this agreement, the defendant 1) was obliged to dispatch the appropriate rescue resources if they were available. It was also stipulated that the defendant 4) would remain responsible for compliance with the response time despite forwarding the call to the defendant 1).

The lawsuit was brought by the parents of the child who died at the age of one. One evening in January 2017, one month before the calculated due date, the mother’s husband dialed the emergency number on his cell phone at 10:41 p.m. Prior to this, the husband had spoken on the phone with the midwife in charge, who explained that the mother had to be taken to a hos-pital immediately because she was experiencing pain. The child’s father informed the dispat-cher at the control center of this. Since the husband’s cell phone initially dialed into the radio cell of a control center that was not locally responsible, the dispatcher who was called first forwarded the emergency call at 10:47 p.m. to the control center of the fourth defendant, which in turn forwarded the emergency call to the control center of the first defendant. When the call was forwarded, the dispatcher was told that it concerned pain during pregnancy. However, the midwife’s assessment that immediate hospitalization was necessary was not “forwarded.”

The dispatcher at the “last” control center contacted the child’s father by telephone. The child’s father explained to the dispatcher that it was a case of pain during pregnancy, but did not himself refer to the midwife’s information. The dispatcher then dispatched an ambulance at 10:51 p.m. in accordance with the alarm and dispatch procedure (AAO). When the ambulance arrived at the scene, it requested the NEF at 11:18 p.m., which arrived at 11:30 p.m. Transport took place at 11:33 p.m. Shortly after midnight, the child was delivered by emergency caesa-rean section. It was determined that there had been a premature placental abruption. The child suffered from hypoxic-ischemic encephalopathy and died at the age of 1 year.

From the grounds for the judgment:
The Regional Court and the Higher Regional Court dismissed the action. Among other things, the courts stated that the content of the emergency call did not clearly indicate the need for an emergency doctor. Mere pain during pregnancy did not automatically justify the dispatch of an emergency doctor.

The Federal Court of Justice overturned the judgment and referred the case back for retrial. The Federal Court of Justice stated that the list of indications for emergency doctor deploy-ment must always be used as a decision-making tool for control center dispatchers and that dispatchers in a control center also had the necessary discretion to deviate from the specifi-cations in the list of indications. In addition to the list of indications, the local AAO or other deci-sion-making aids defined by the medical director are also decisive for the dispatch of emergency services.

However, the decisions of the previous courts were incorrect because the question of whe-ther an emergency doctor should have been dispatched in the present case required medical expertise in the field of emergency medical services, with the consequence that the courts should have obtained an expert opinion on the matter. The content of the emergency call was also incorrectly assessed. The transcript of the emergency call shows that the first control center was informed that the plaintiff, who was nine months pregnant, was in extreme pain and therefore unable to move. This meant that the indication for an emergency doctor was not ruled out.

The dispatcher who forwarded the call should have informed the responsible control center that an emergency doctor was required. This obligation arises from the nature of administrati-ve assistance. Administrative assistance always requires the requesting authority to specify the type of assistance required.

The Federal Court of Justice stated the following regarding the burden of proof: Even in the context of emergency medical services or the work of a dispatcher in an emergency control center, a reversal of the burden of proof is possible. This applies in cases of gross negligence of a dispatcher’s duties. The principles of burden of proof from the field of medical liability could also apply in the control center, because the work at the control center would corres-pond to a comparable interest situation. This is because the professional or organizational duties at a control center specifically serve to protect the life and health of others. This inte-rest situation therefore requires the application of the principles of burden of proof from medi-cal liability.

Outlook:
The ruling does not represent a new development in terms of content and is no cause for concern. Many years ago, the Federal Court of Justice had already ruled in other decisions (judgment of May 11, 2007 – III ZR 92/16 – home emergency call; judgment of November 23, 2017 – III ZR 60/16 – Bathing accident and swimming instructor) that the evidence situation under medical malpractice law would always apply when it came to protecting the life and health of others and when one was obliged by professional qualification to ensure the protec-tion of life and health.

The Higher Regional Court must now obtain an expert opinion to clarify whether or not there has been such a serious breach of duty of care on the part of the control center dispatcher in the present case. The timing will also be crucial in this case. It is clear that in the event of premature placental abruption, the utmost urgency is required. However, according to the times documented in the judgment, the undersigned is of the opinion that there was no delay. A faster arrival of the ambulance was impossible due to icy conditions. An emergency physician initially present at the scene would not have brought any time advantages. The presumed circulatory substitution through an IV, oxygen, and monitoring would not have been any diffe-rent if an emergency physician had been present initially. Considering that the transport with the emergency physician and the pregnant woman began at 11:33 p.m. and the child was de-livered shortly after midnight, it must be assumed that the procedure in this case was absolu-tely smooth and exemplary in terms of time, because such times, including transport, cannot be taken for granted.