DE: Rebuff of the "day-by-day" calculation for damages upheld

May 27, 2022 Benn-Ibler Rechtsanwälte

In its ruling of March 22, 2022, the German Federal Supreme Court (Bundesgerichtshof, BGH) confirmed its abandonment of the "day-by-day" method of calculating damages for pain and suffering. The method also appeared to be unsuitable as a "plausibility check" in cases of permanent injuries, the BGH said.

In the case at hand, a young girl sued her mother's doctor, who was treating her at the time, for payment of EUR 680,000 due to insufficient information before her birth. The girl suffered severe brain damage during an emergency caesarean section in 2006 and has since been in need of permanent care. The treating doctor already paid EUR 300,000 in damages for pain and suffering in 2017. The Regional Court now awarded the plaintiff a further EUR 200,000.

The Senate of the Court did not object to the assessment of the damages for pain and suffering by the lower courts. However, the "day-by-day" calculation of damages for pain and suffering was unsuitable for determining consistent compensation on the basis of an overall assessment. The decisive factors for the amount of damages for pain and suffering were essentially the severity of the injuries, the suffering caused by them, their duration, the extent of the injured person's perception of the impairment and the degree of fault of the injuring party. It was not a matter of looking at individual circumstances in isolation, but of an overall consideration of all circumstances of the individual case. The focus was on the amount and degree of the impairment of life that had occurred.

Thus, in a "day-by-day" calculation, it was precisely not possible to make gradations depending on the degree of the remaining ability to feel and experience and the severity of the respective impairment. In any case, according to the BGH, the result of the lower court that the doctor's fault did not increase the compensation for pain and suffering was not objectionable. Satisfaction is also of fundamental importance in the area of medical liability. According to the BGH, gross negligence on the part of the doctor could generally increase the amount of compensation, but a gross breach of duty in the form of a treatment error did not in itself mean that there was also gross negligence.

BGH, VI ZR 16/21 (22.03.2022)