Federal Supreme Court, Judgment of 02.09.2021
– III ZR 63/20 –
Medical information forms are only subject to limited control under the law on general terms and conditions pursuant to § 307 para. 3 sentence 1 BGB.
The defendant is an association of ophthalmologists. It recommends the use of a patient information sheet to its members. In this form, patients are first informed that from the age of 40 there is a risk of developing glaucoma (so-called glaucoma) without symptoms appearing at an early stage. For this reason, an early detection examination is recommended, although this is not paid for by the statutory health insurance. The form then contains the following passage:
“I have read the patient information on the early detection of glaucoma and have been informed that, despite the absence of typical symptoms, an early detection examination is medically advisable.”
Below this, the patient has the option of ticking the statements “I wish to have a glaucoma screening examination” or “I do not wish to have a glaucoma screening examination at present“. Finally, the signatures of the patient and the doctor are required.
The Consumer protection association sued against such a form.
The plaintiff, a consumer protection association, is of the opinion that the statement that he had read the patient information and had been informed that the early detection examination was medically required is an inadmissible confirmation of fact according to § 309 No. 12 half-sentence 1 letter b BGB. He asked the court to order the defendant to refrain from recommending the use of this clause to its members (possibly with the addition “I do not wish to have a glaucoma screening examination at present“).
The Regional Court upheld the action. On appeal by the defendant, the Higher Regional Court dismissed the action.
The plaintiff’s appeal, which was allowed by the court of appeal, was unsuccessful. The challenged clause is not invalid pursuant to § 307 (1) and (2), § 308 or § 309 BGB. It does not deviate from legal provisions, so that a content review under these provisions pursuant to § 307 para. 3 sentence 1 BGB does not take place. The information sheet recommended by the defendant informs patients about the risk of symptomless glaucoma and about the possibility of an early detection examination (to be carried out at their own expense). The disputed clause serves to document the information provided and the patient’s decision as to whether to undergo the recommended examination.
The clause in dispute serves to document the information provided and the patient’s decision as to whether he or she wishes to undergo the recommended examination.
Special independent rules apply to medical information
The Federal Supreme Court has not attributed any significance to the fact that these are form-based notices, leaflets or similar generally worded declarations that is contrary to the effect of proof. Rather, it pointed out the advantages of pre-formulated information for the patient, and even attributed evidentiary value to them even if they are not signed. The legislature took up these principles when it created the Act to Improve the Rights of Patients of 20 February 2013.
The challenged clause fits into this special information and evidence regime of the law of the treatment contract, so that it is in line with the legal situation.