A legally sound guide for patients and relatives
Surgery is an intervention with risks. The postoperative phase – the first 24 to 72 hours – is considered a critical phase in medical terms. During this time, complications such as secondary bleeding, infections, thrombosis, or organ failure can occur. The legislator and case law therefore require medical monitoring. But what if for two days only nurses or caregivers provide care and no doctor appears?
This article explains the medical, legal, and practical consequences – with references to the German Civil Code (BGB), Social Code Book V (SGB V), the (Model) Professional Code for Physicians ((M-)BO-Ä), and current Federal Court of Justice (BGH) rulings.
1. Medical Standards: What is "state of the art"?
| Period after surgery | Medically necessary (according to DGCH/DGAI guidelines) |
|---|---|
| 0–6 hours | Hourly physician rounds (intensive/recovery ward) |
| 6–24 hours | At least 2 physician rounds (incl. evening round) |
| 24–72 hours | Daily physician rounds + immediate availability for vital sign deviations |
| >72 hours | Daily rounds + specialist rounds for high-risk patients |
Conclusion: Two days without any physician rounds violate the duty of care of a specialist (§ 630a BGB).
2. Legal Classification: Medical Malpractice?
2.1. § 630a BGB – Treatment Contract
- The physician (or hospital) owes performance according to the current state of medical science.
- Delegation to nursing staff is permissible, but only for delegable tasks (e.g., measuring vital signs, changing bandages).
- Diagnostics, treatment decisions, and rounds are not delegable ((M-)BO-Ä § 7 para. 4).
2.2. BGH, ruling of 12/13/2016 – VI ZR 123/15
"Physician rounds are a core obligation of the treatment contract. A complete absence for over 48 hours constitutes gross medical malpractice if complications remain undetected as a result."
2.3. Hospital: Organizational Fault (§ 831 BGB)
- The hospital is liable for inadequate staffing or faulty duty rosters that make physician rounds impossible.
- BGH, ruling of 11/26/2019 – VI ZR 198/18: "A hospital must ensure that a physician is available at all times during the postoperative phase."
3. Practical Consequences for the Patient
| Risk | Possible consequence | Burden of proof |
|---|---|---|
| Unrecognized hemorrhage | Shock, transfusion, re-operation | Reversal of burden of proof (§ 630h para. 5 BGB) |
| Sepsis | Multiple organ failure, death | Full proof by patient, but gross error = facilitation of proof |
| Thrombosis/embolism | Pulmonary embolism | Causality often difficult, but lack of rounds = indication |
Important: In cases of gross errors (e.g., no rounds for 48 hours), the hospital bears the burden of proof that the damage would have occurred *even with proper rounds*.
4. What can you do immediately?
Step-by-step action plan
- Document
- Note times, who came when (nurse? no doctor?).
- Photograph vital signs monitor, dressing condition, medication plan.
- Complain verbally
- Ask the ward manager:
> “Why has no doctor made rounds since [date]? I demand an immediate medical examination.” - Get written confirmation (e.g., in the nursing report).
- Complain in writing
- Sample letter (by registered mail/email with read receipt): „` Subject: Urgent complaint – No medical rounds for 48 hours Dear Sir or Madam, I was on your ward [No.] since [date of surgery]. Since then, no doctor has made rounds. This violates § 630a BGB and the guidelines of the DGCH. I demand:
- Immediate medical examination by [date/time].
- Written statement within 3 days.
Sincerely
[Name, Signature]
„`
- Patient advocate / complaints office
- Every clinic must have a complaints office (§ 135 SGB V).
- Request access to medical records (§ 630g BGB).
- In case of acute danger: emergency room / 112
- If vital signs drop or pain increases? act immediately.
5. Damages & pain and suffering compensation
| Damage | Possible amount (guideline values) |
|---|---|
| Minor complication (e.g., prolonged hospital stay) | €1,000–€3,000 |
| Severe complication (e.g., re-operation) | €10,000–€50,000 |
| Permanent consequences (e.g., consequences of thrombosis) | €50,000–€150,000 |
| Fatal outcome | €200,000 + loss of support |
Tip: Legal protection insurance or litigation financiers often cover the costs.
6. FAQ – Frequently Asked Questions
| Question | Answer |
|---|---|
| “The nurses say the doctor will come tomorrow.” | This does not absolve them of the daily duty to make rounds. Demand an immediate examination. |
| “I’m not in pain – is that okay?” | No. Complications can be silent (e.g., internal bleeding). |
| “It was a small hospital – that’s normal there.” | No. The duty to make rounds applies uniformly nationwide. |
7. Summary in 3 sentences
- Two days without a doctor's visit = gross medical malpractice (§ 630a BGB, BGH).
- Document, complain, inspect records – this secures your claims.
- In case of complications: reversal of the burden of proof? Hospital must exonerate itself.
Legal notice:
This article does not replace individual legal advice. If you suspect medical malpractice, contact a specialist lawyer for medical law (usually a free initial assessment via legal protection insurance).
Sources: BGB, SGB V, (M-)BO-Ä, BGH VI ZR 123/15, VI ZR 198/18, DGCH Guideline “Perioperative Care” (as of 2024).
