On July 3rd, 2017, the Bamberg Higher Regional Court (OLG) held a hearing on summary urgency proceedings in the second instance, which was also attended by the TV station Bayerischer Rundfunk (BR), among others. The television station had obtained a filming permit from the court in advance in order to be allowed to film in the court building. Atty. Dr. Seyfert was interviewed by them about the case.
Our client in these summary proceeding is a scientific journalist who publishes his own very successful online magazine. There he regularly reports on undesirable developments at hospitals, failed operations that are often nevertheless sold by hospitals as successes, as well as, for example, doctors who experiment directly on human patients with dubious new treatment methods.
Our client published several newspaper articles in his online magazine about a married couple who together had developed a new surgical method for transplanting bio-artificial tracheae made from pig intestine. The husband subsequently performed the operations. The patients who received these pig intestine tracheae subsequently all died. Among other things, it was disputed whether the operations performed had caused or accelerated the death of the patients. In one patient, the implanted trachea had rotted in the patient’s body after a short time. This patient then subsequently died from internal mass hemorrhages. In another patient, a tracheotomy had to be performed again to save the patient from suffocation. Ashamed of the hole in his throat, the patient later committed suicide.
In this summary proceeding, the doctor couple attacked several passages in our client’s newspaper articles. In particular, the question was whether the operations had caused the death of the patients and had caused the patients’ suffering. The doctor couple feared for their good reputation and invoked a violation of their general right of personality.
In the first instance court proceeding, the Regional Court of Würzburg (Case No. 12 O 2203/16) predominantly decided according to the doctors’ application and ordered the deletion of essential parts of the newspaper article in question.
On our appeal, the Higher Regional Court of Bamberg clarified in the oral hearing that it had to set aside the judgement of the Regional Court of Würzburg because the operative part (verdict) of the first-instance judgement was already incorrect. Additionally, the Higher Regional Court of Bamberg emphasized that only the social sphere of the applicants was affected in this case. The doctor couple had addressed the public themselves and given interviews on their – allegedly successful – method of treatment. In this respect, they must then also expect and live with criticism from the press, the media, and the public to a large extent. The constitutional protection of freedom of the press, freedom of the media, freedom of opinion, as well as freedom of information of the general public thus outweighs the plaintiffs’ personal rights to work undisturbed.
The Higher Regional Court (OLG) of Bamberg subsequently suggested an amicable settlement between the parties, setting aside the judgement of the Regional Court of Würzburg. The parties finally followed the settlement proposal of the OLG Bamberg – after several hours of negotiations. Our client may of course continue to report freely and, without acknowledging any infringement of rights in the past, merely undertake, as a gesture of goodwill, to refrain from making certain very specific statements on non-essential issues, which he had already deleted from his website anyway. The amicable settlement between the parties thus finally ended the legal dispute between the parties, so that there is no longer any need for main proceedings.
The media, including Bayerischer Rundfunk (BR), will continue to report on past cases of experiments directly on human patients, independently of the present case.