Cologne Higher Regional Court: Doctors have not given sufficient information about risks
(jur). If doctors do not point out to cancer patients about possible permanent hair loss before chemotherapy, this can constitute compensation for pain and suffering. The obligation to provide medical information exists even if the risk is rarely realized, the Cologne Higher Regional Court (OLG) decided in a judgment of March 21, 2016, published on Wednesday, March 23, 2016 (file number: 5 U 76/14) . In doing so, the Cologne judges awarded a cancer patient a compensation for pain and suffering of 20,000 euros.
The woman first had surgery for breast cancer. Afterwards she underwent chemotherapy to finally defeat the cancer. However, the treating gynecologists did not point out in the informational discussion that the drug used can in rare cases lead to permanent hair loss on the whole body. A study had found permanent hair loss in 3.2 percent of the treated patients after a mean follow-up of 55 months.
The existing risk was realized in the complaining breast cancer patient. With chemotherapy, she permanently lost her body hair, eyelashes and eyebrows were also missing. Only her head hair grows back partially.
The OLG found that the doctors had insufficiently informed the applicant about the risks of the cancer drug. Before treatment, patients should “generally” know what they are getting into. Risks should be clarified if they occur “rarely” and have “significant” effects.
In vain, the clinic objected that the patient would have opted for chemotherapy even if the patient had been fully informed. The OLG came to the conclusion that the woman would then have had a "real decision conflict" and that she would not have chosen the treatment safely.
When considering the amount of the compensation for pain and suffering, the court also took into account the psychological consequences and emotional stress due to the loss of hair. (fle)