Metal-containing orthosis in MRI - compensation?
However, a patient's liability can be completely withdrawn when weighing up according to § 254 BGB if there is a particularly serious contributory fault on the part of the doctor that caused the damage. Matthias Gedeon, a fully qualified lawyer specializing in medical malpractice, explains the case and the judgment of the Nuremberg Higher Regional Court of February 15, 2023 (4 U 20/22).
The case
In a radiology practice, an examination using MRI was performed on June 17, 2020 on a patient born in 1942. The patient was wearing an orthosis on her left leg. However, she did not remove it before the examination. Nor did the two employees of the radiology practice who were preparing the examination ask the patient to remove the orthosis. The examination began with the orthosis in place. This was attracted by the magnet of the MRI scanner, causing an emergency shutdown (so-called quench). As a result, the MRI scanner had to be repaired. During the repair, the magnet of the MRI scanner was refilled with liquid helium.
Course of proceedings
The owner of the radiology practice then claimed damages from the patient. He sued the patient for compensation of €47,457.33 plus €9,016.90 VAT for refilling the magnet, as well as for lost revenue in the amount of €6,625.23.
In the first instance, the District Court of Nuremberg-Fürth (judgment of December 2, 2021, 14 O 8613/20) denied the claim for lost sales, but awarded the amount of €47,457.33 plus €9,016.90 in VAT for refilling the magnet. However, it assumed contributory negligence on the part of the radiologist in accordance with § 254 BGB and therefore reduced the amount by 50 percent.
Both the radiologist and the patient appealed against this decision to the Nuremberg Higher Regional Court.
The decision
The OLG Nuremberg rejected the radiologist's appeal. However, the patient's appeal led to the annulment of the first-instance decision and to the dismissal of the radiologist's claim.
The OLG stated that, although there was a negligent breach of duty on the part of the patient that was causal for the occurrence of the damage, since she had not pointed out the orthosis despite appropriate questions and warnings, Patients are naturally subject to a general duty to behave with due care towards the clinic or practice equipment, other patients and staff. The patient had breached this duty by failing to point out that the orthosis she was wearing was a metallic object, despite warnings and questions to this effect, even though it should have been clear to her that it should not be worn during the examination.
Nevertheless, the OLG denied the radiologist's claim for damages because, according to § 254 BGB, there was such a serious contributory fault on his part that the patient's liability was completely eliminated. Specifically, the OLG assumed that the radiologist's employees were partly to blame, which could be attributed to him in accordance with § 278 BGB.
I. Severe contributory negligence on the part of the radiologist
The Higher Regional Court based its assumption of severe contributory negligence on the following points. It considered the employees' failure to take note of the orthosis and to ensure that it was removed, despite the fact that it was clearly visible, to be particularly serious contributory negligence. At the oral proceedings, the Higher Regional Court inspected the patient's orthosis and found that it had not only clearly shown as a foreign body under the trousers, but that its metal parts in the ankle area had also been easily visible and recognizable as such in the form of a black part and a silver-colored metal piece.
The behavior of the employees also proved to be particularly careless because the patient's gait was conspicuous in this respect. The patient was unable to move her left leg normally and the orthosis was clearly visible under her trousers. This was also noticeable without special attention. This realization allows the conclusion of a lack of attention and a very special, simply incomprehensible carelessness.
The employees' fault was also particularly serious because they did not even notice the orthosis, which was undoubtedly easily recognizable visually, when they placed the patient's leg (along with the orthosis on it) on the examination table.
Particularly careless behavior was also evident from the fact that the employees did not notice the zipper that ran down the entire side of the trousers.
Furthermore, one employee stated that she assumed the prosthesis was made of carbon. In the opinion of the Higher Regional Court, this is particularly serious evidence of a failure to exercise the necessary care in view of the risk of damage.
Last but not least, a further significant contributory factor arises from the fact that the patient was not warned of the risk of unusually high damage before the examination. It was not foreseeable for the layperson that metallic objects in the MRT could not only influence the examination result, but could also be attracted by the device and lead to an emergency shutdown, which would then incur costs in the five-digit range.
II. Slight negligence on the part of the patient
In contrast, the OLG assumed only slight negligence on the part of the patient. In this context, it should be noted that the patient had completed the medical history form correctly. For example, an orthosis was not explicitly mentioned in the medical history form. The section “Before the examination” includes the instruction “please remove the following metallic objects: jewelry, watch, glasses, braces, hearing aids, keys, coins, hair clips, etc., as well as cards with magnetic strips, as these could otherwise be erased.” The orthosis could be included under “etc.” at best, although, according to the radiologist, patients with walking difficulties regularly come for MRI examinations, so that an explicit mention would be expected.
The patient would not have had to mention the orthosis in response to the question “Are there other metal parts in your body (e.g. spirals, prostheses, shrapnel, vascular clips, metal dust, dentures)?” This is because the orthosis is an object that is worn on the body, not in it. The orthosis worn on the body is also not included in the following explicitly mentioned metal parts, which are provided with the option to check the box.
The patient can therefore only be accused of not having classified the orthosis under the heading “Before the examination” as a metallic object falling under “etc.”.
The fact that the patient had not looked at the information and prohibition signs did not justify the accusation of gross or medium negligence either. An orthosis was neither explicitly mentioned nor depicted on the information signs. Rather, implants that can be influenced electromagnetically are mentioned and examples are listed. The orthosis was only covered by the smaller-scale information on “metal implants and other metal objects on the body – for example splinters” and “metal parts and medical instruments of all kinds”. This meant that it would have been necessary not only to look at the warning signs, but also to read the information signs carefully in order to be able to recognize the orthosis as a prohibited item, especially since the pictorial representations would not show walking aids either.
Conclusion
The decision of the OLG Nuremberg shows that damages caused by the misconduct of a patient cannot lead to compensation if there are significant omissions on the part of the medical staff that have also contributed to the occurrence of the damage. However, this is always a case-by-case decision of the court.
The following recommendations for practice can be derived from the decision for the field of radiology.
MRI examinations should always be carried out by specially trained, attentive and trustworthy personnel who will notice any metallic objects on patients before the examination in order to prevent damage to the device.
Should damage nevertheless occur due to metallic objects, documented comprehensive clarification and anamnesis are very helpful for the enforcement of a claim for damages. In this, the patient should be made aware that metallic objects are removed in the MRI and can cause significant damage. Above all, as many examples as possible of metallic objects that can be worn both in and on the body should be listed in the medical history form. This applies in particular to orthoses.
Such an explanation and medical history can turn a case of slight negligence into one of moderate or gross negligence.
Matthias Gedeon