GER: Pre-Surgery Written Briefing is Insufficient

Feb 7, 2025 Benn-Ibler Rechtsanwälte

Written information about a medical intervention is not sufficient, according to the German Federal Court of Justice (Bundesgerichtshof, hereinafter BGH). The part of the information that is relevant for patients to make an informed decision has to be given orally. This oral briefing must explain rare and serious risks.

The plaintiff in the case at hand had a diagnosis of osteoarthritis of the ankle joint. A conservative approach of exercise and reduced stress on the foot was suggested to him for healing. As there was no improvement in symptoms, the plaintiff was seen again by the treating physician, who then recommended surgery. A consent form for the ankle surgery was presented and was signed by both the patient and the doctor. However, it so turned out that one operation was not enough, as after the surgery the plaintiff began suffering from paraesthesia in his right foot due to nerve damage that occurred as a complication due to the surgery.

Consequently, the patient sued his doctor for misrepresentation of the risks of the operation on the grounds that the patient had not been informed of alternative treatments and the risk of nerve damage. The plaintiff claimed that he had not been informed of any alternative treatment options available and of the risk of nerve damage. He claimed material and non-material damages, raising a hypothetical consent defence.

The BGH ruled as follows:

Valid patient consent requires that the patient be properly informed. In this respect, it is not necessary to provide an exact medical description of the risks associated with the treatment. Rather, it is sufficient to inform a patient ‘in general terms’ about the chances and risks of the treatment and thus to give the patient a general idea of the extent of the risks associated with the procedure, without embellishment or exaggeration. Regarding the modalities of the information, Section 630e (2) of the German Civil Code (Bürgerliches Gesetzbuch, BGB) stipulates that the information must be provided orally and that reference may also be made to documents provided to the patient in written form.

Information given orally about ‘broad’ risks and benefits of treatment, and thus a general idea of risks associated with an intervention, requires that these risks are also mentioned in discussion.

Textual information may only be used to supplement, i.e. to repeat or illustrate what has been said.

BGH VI ZR 188/23 (5 November 2024)