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BGH: Agreement of the doctor or his insurance is not necessary
Karlsruhe (jur). If patients call the arbitration board of a medical association because of alleged mistreatment, the limitation period is initially inhibited. It is not necessary for the doctor or his liability insurance to agree to the arbitration, as the Federal Court of Justice (BGH) in Karlsruhe decided in a judgment published on Monday, February 13, 2017 (Az .: VI ZR 239/15).
In the event of a dispute, an orthopedic surgeon had not recognized Lyme disease caused by a tick bite. The infection therefore triggered arthritis in almost all body joints.
The patient decided late to claim damages. Corresponding claims would be time-barred at the end of 2011. Shortly before, on December 22, 2011, the patient called the arbitration board of the North German Medical Association.
In February 2012, the orthopedist agreed to the arbitration. However, his insurance company got in the way: the doctor only approved the arbitration after the limitation period had expired; possible claims are therefore time-barred.
District court Erfurt and higher regional court (OLG) Jena had still followed. According to the law, the assertion of claims against a non-state arbitration board only limits the limitation period if the procedure "is carried out in agreement with the defendant".
With its judgment of 17 January 2017, which has now been published in writing, the BGH has now overturned the judgments of the lower courts. The statute of limitations was inhibited and the dispute was therefore not statute-barred. Therefore, the OLG should now examine the content of the claims for damages.
For justification, the Karlsruhe judges referred to another legal provision. Thereafter, agreement is "irrefutably presumed" at a consumer arbitration board or a "branch-related other quality office".
According to the Karlsruhe ruling, this can also be applied to the limitation period by applying to the arbitration boards of the medical associations. The approval of the doctor or even his insurance company is not important. "This also applies if an arbitration procedure according to the rules of procedure of the respective arbitration board is only carried out if the doctor and liability insurer agree to carry out the procedure."
If arbitration fails, patients have six months and ten days to file a lawsuit. The BGH emphasized that the day on which the failure was reported did not count. Here the arbitration board informed on April 13, 2012 about the termination of the proceedings; on October 23, 2012 - and thus just in time - the lawsuit was received. mwo / fle