HW Legal
Loss of evidence in medical malpractice cases
In disputes between patients and healthcare providers concerning compensation for harm, evidence is often lacking. This generally places the patient, as the claimant, at a disadvantage: put simply, if the claimant fails to prove the allegations made in the claim, the court will dismiss it.
But what happens when the lack of evidence is caused by the healthcare provider itself?
A patient underwent surgery in a hospital. After the operation, a surgical swab was inadvertently left inside the patient's body. The patient subsequently suffered pain and complications, which led to a second operation. During that procedure, the doctors discovered and removed the forgotten swab. They then discarded it.
The patient brought a claim against the hospital seeking compensation for the pain and suffering experienced in the meantime. However, he was unable to prove a causal link between the medical error (leaving the swab inside his body) and his suffering without knowing the material composition and size of the swab—which had been disposed of by the physicians during the second surgery.
How did the German Federal Court of Justice (Bundesgerichtshof, BGH) deal with the situation?
The court held that once the physicians discovered the forgotten swab during the second operation, they should have realised that the patient might bring a compensation claim against the hospital and that the characteristics of the swab could become important evidence in subsequent litigation.
They should therefore either have preserved the swab or at least properly documented its characteristics.
If they disposed of it instead, any resulting evidentiary disadvantage concerning the swab's properties had to be borne by the hospital.
In the Czech Republic, courts have considered a somewhat similar situation, which we discussed in a previous article. Similar - but not identical.
In that case, the physician failed to maintain medical records in a manner that would allow their diagnostic process to be reconstructed. As a result, it was impossible to determine from the medical records whether the physician had acted lege artis or whether they had committed a professional error.
Rather than simply concluding that unlawful conduct had not been proven, the court should in such circumstances consider whether the burden of proof ought to be reversed regarding the question of whether the physician acted unlawfully.
In other words, the court may, as a measure of last resort, presume that the physician acted unlawfully. The reason is that the physician breached their duty to maintain proper medical records and thereby caused the patient's evidentiary difficulties in the subsequent proceedings.
Unlike the Czech case, however, the physicians in the German case had not breached any statutory obligation. German law does not require healthcare providers to preserve blood-stained surgical swabs removed from a patient's body (indeed, doing so would likely raise hygiene concerns).
It therefore remains an open question whether Czech courts would approach a similar case in the same manner as the German Federal Court of Justice.
(Based on the judgment of the German Federal Court of Justice (BGH) dated 16 April 1955, Case No. VI ZR 72/54.)