In compensation disputes between a patient and a doctor, evidence is often scarce. This usually disadvantages the patient-plaintiff: simply put, if the plaintiff cannot prove the allegations in the complaint, the court will dismiss the case. But what happens when the doctor is responsible for the lack of evidence?
The patient underwent surgery at the hospital, but after the operation, a tampon was left inside his body. He experienced significant pain and complications post-procedure. A second surgery was necessary, during which the doctors discovered and removed the forgotten tampon—and then discarded it. The patient sued the hospital, seeking compensation for the pain he endured in the meantime. However, he struggled to prove the causal link between the malpractice (leaving the tampon inside) and his suffering, as the doctors had disposed of the tampon during the second surgery, leaving its material and size unknown.
How did the German Federal Supreme Court (BGH) address this issue? When doctors discovered a forgotten tampon in the patient’s body during a second operation, it should have been evident that the patient could sue the hospital for damages and that the tampon's properties could be crucial in the litigation. Therefore, they should have preserved the tampon or at least documented its characteristics. If they disposed of the tampon, any evidentiary deficiency (regarding the tampon's properties) falls on the hospital.
In the Czech Republic, the courts have dealt with a similar case. Similar - not the same. This time, the doctor did not keep medical records that showed his examination procedure. It was therefore impossible to determine from the medical records whether he had acted de lege artis or whether he had erred. Rather than concluding that no wrongdoing was proven in such a case, it is appropriate for the court to consider reversing the burden of proof as to whether the physician acted wrongfully. In other words, the court may (as a last resort) presume in such a case that the doctor acted unlawfully. This is precisely because the physician breached his or her duty to maintain medical records consistently, thereby causing the patient to be in need of proof in subsequent proceedings.
Contrary to the Czech case law, in the German case the doctors did not violate any legal obligation - the law does not require them to keep bloody swabs removed from the patient's body (on the contrary, it would probably be unhygienic). It is therefore questionable whether the Czech courts would act in a similar case as BGH.
(according to the decision of the German Supreme Court BGH of 16.04.1955, Case No. VI ZR 72/54)
JUDr. Kateřina Hájková is an expert in medical law. Please do not hesitate to contact her if you are considering a medical lawsuit.
