OLG Koblenz: Pain compensation can be requested from the youth welfare office
(jur). If a child is placed in a foster family because of a grossly erroneous expert opinion on an allegedly suffered child abuse, the expert does not have to pay compensation for pain and suffering. The expert did not have to be personally liable for the incorrect report, but rather the district as the body responsible for the youth welfare office, which commissioned the woman, judged the Higher Regional Court (OLG) Koblenz on Friday, March 18, 2016 (Az .: 1 U 832/15) .
The background to the legal dispute was the suspicion of the youth welfare office that child abuse could exist in two small children. The children live with their parents in the Palatinate. The authority had commissioned a forensic doctor from the University Hospital Mainz to prepare an expert opinion. For this she received children's medical records.
The medical examiner came to the conclusion in her report of May 23, 2013 that a child was very likely the victim of one or more shaking trauma. This would indicate the symptoms found. In the other sibling, suspicion of ill-treatment was denied.
The youth welfare office therefore applied to the responsible family court, referring to the report, to temporarily place the children in foster families. The court also complied. The two children, then seven and 18 months old, were housed in foster families for more than half a year.
But the parents wanted their children back. Later reports finally came to the conclusion that the abnormalities found were the result of an inherited disease. The children therefore suffer from a so-called water head. The slightest tremors can lead to blood clots.
After the child's suspicion of child abuse had been cleared up, the parents asked the legal doctor and the university clinic to pay compensation for themselves and their children.
The Mainz Regional Court ruled that the clinic did not have to pay anything because it had not commissioned the report. However, the forensic doctor could very well be asked to pay, as she was personally responsible for the grossly incorrect report, which did not meet scientific standards.
The OLG now contradicted this. The expert had drawn up a grossly incorrect report and ruled out alternative causes for the symptoms of the children "categorically and unconditionally" without justification. However, she did not have to be personally liable for her mistakes. Claims for compensation for pain and suffering are rather to be asserted against the district as the body responsible for the responsible youth welfare office, which has commissioned the experts.
The youth welfare office, with its function as a guardian of the child's welfare, consulted the experts as an external specialist and based its application for placement in a foster family at the family court on the report. The expert acted "in the exercise of a public office" in her expert opinion. In such a case, the commissioning body, but not itself, must be liable. (fle / mwo)