Higher Regional Court Hamm (OLG): Atty. Dr. Seyfert wins lawsuit for a clinical doctor against the daughter of a patient based on the infringement of our client’s personality rights (defamation) (Case No. I-6 U 53/19)

Our client (plaintiff) worked as an assistant doctor at the University Hospital in Münster. On a late Friday afternoon, the defendant appeared together with her mother and her father at Münster University Hospital for a preliminary anesthesia consultation concerning a planned aneurysm operation on her mother. Shortly before, the mother had suffered a triple shoulder fracture in a fall. When the defendant and her parents arrived at Münster University Hospital late on Friday afternoon, it was unclear whether the mother’s triple shoulder fracture had to be treated before the aneurysm. Our client (plaintiff) had this preliminary anesthesia discussion with the defendant and her family.

Our client first learned of the aforementioned triple shoulder fracture when the defendant and her parents came to the plaintiff in the consultation room on late Friday afternoon. So far, no doctor had informed the defendant and her mother that due to the triple shoulder fracture, serious medical issues would arise – also in the context of premedication – and that the preparation for a planned aneurysm operation on the brain would be significantly more complex than usual. Additionally, it was unclear whether the triple shoulder fracture was not to be treated as a priority. The plaintiff (our client) discussed these issues with the defendant and her parents in an objective and solution-oriented manner throughout.

Due to the new medical situation with the patient (mother of the defendant), i.e. the triple shoulder fracture that had occurred shortly before, a re-evaluation of the further procedure by the various medical specialists at Münster University Hospital had to take place first. By late Friday afternoon, this was no longer possible – despite considerable efforts by our client – especially since the defendant and the patient did not have essential documents (e.g. CT scans, the updated list of medications, laboratory values from the hospital that had been treating her up to then, the accident surgery treatment plan) with them. A clarification of the situation could therefore inevitably only take place at the beginning of the following week.

More than two weeks later, the defendant sent a letter of complaint to various offices at Münster University Hospital. In it, the defendant claimed the following about the plaintiff, among other things:

“(The plaintiff) was obviously unfocused and unable to note down the medication without error. She asked several times and repeated our information 3 times incorrectly.”

“When my mother asked whether she should still take her medication on the morning of the operation or whether she should stop, she replied curtly that she did not know, that my mother should know herself. ???“

“I remarked that I had sent the documents in advance for this reason, to avoid the unnecessary driving given the painful triple shoulder fracture (1-hour drive each way). I kindly asked her to please follow up with the crucial doctors.

She replied that it was not her job and that her colleagues had already gone for the weekend, “how would we imagine that?”

The aforementioned statements in the letter of the complaint did not correspond to the truth. Therefore, our client brought an action against the defendant for violation of the general right of personality (defamation, slander, damage to reputation). Among other things, she demanded that the defendant ceases and desists from making the aforementioned false allegations, pay damages, and reimburse expenses.

After the Münster Regional Court had only partially upheld our client’s claim, our client, on our recommendation, appealed against the first-instance court judgment to the Higher Regional Court in Hamm. From a legal point of view, the question was whether the letter of complaint to the complaints’ management of a university hospital constituted a so-called “liability privileged statement” (similar to, for example, a statement to the police or a court). Liability privileged statements are in principle legally compliant and do not violate the general right of personality of the person affected by the statement. In the case at hand, however, the question of the liability privilege of the statement could be left aside because a person making the statement cannot invoke a liability privilege if the untruthfulness of the statement at issue is obvious (also according to the comments of the Higher Regional Court of Hamm at the oral hearing). In such cases, the protection of the general right of personality prevails. Following the instructions of the OLG Hamm, both parties subsequently reached an agreement in a court settlement, the content of which was in favor of our client. In the court settlement, the defendant undertook to cease and desist and to revoke all the statements in dispute that damaged her reputation and to donate a significant amount of money to a children’s hospice.