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I have read various articles that litigating for damages due to injury against medical professionals or clinics is an uphill battle. See here

In simple terms, the case is as follows: A and B both got tested at different clinics for STIs. A got all negative. B was told they will be contacted in case something is wrong. B was never contacted. One year later A suffered from multiple injuries occurring due to an STI that A had. B got tested again and had the STI that A had (making B the source) at the same clinic. B was told by the clinic that the previous report (a year earlier) had "showed readings slightly more than average" but they did not inform B.

What are A's legal options in Germany?

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  • "slightly above average" is medical jargon for "inconclusive" or "within test tolerance of not ill". In your example, could A or B have contracted the STI in the time between test and retest?
    – Trish
    Commented Feb 6, 2022 at 14:45
  • No, that is ruled out. Otherwise, there is clearly no case. Does "inconclusive" not warrant a second test from a medical perspective? Is this litigable?
    – quantum
    Commented Feb 6, 2022 at 15:21
  • That is highly dependent on the amount that "slightly" is, and what marker it is.
    – Trish
    Commented Feb 6, 2022 at 15:27
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    "B got tested again and had the STI that A had (making B the source) at the same clinic." One factor to consider is each clinic's history and/or rate of false negatives. If A's clinic has the higher rate, it would complicate conjecturing who is the actual source and consequently the clinic at fault. Similarly if A's clinic has the policy of labeling a reading of "slightly above the average" as negative.
    – Iñaki Viggers
    Commented Feb 6, 2022 at 15:32
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    Your example does not show any clear causality. B's results were negative/inconclusive. A's results could have been a false negative (tests are not 100% reliable). The tests could have been performed during a period after infection during which the disease was not yet detectable. A or B could have contracted the infection outside of their relationship. You have no evidence that the clinic did something wrong, and even less basis for claiming that the clinic was responsible for later injuries.
    – amon
    Commented Feb 6, 2022 at 15:36

1 Answer 1

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There are none.

  1. Damages against B’s clinic? A does not have a contract with B’s clinic. No duties nor rights without a contract.
  2. Damages against B?
    1. A does not have a contract with B. If there was a contract, we need details about it.
    2. Tort, § 823 Ⅰ BGB? No. B was neither negligent nor did he/she deliberately incur damage.
  3. Report B as criminal? A and B had consensual sexual intercourse. This consent (necessarily) comprises the risk of transmission. You cannot give “consent to facts” though. Yet here B had no knowledge of his/her contagiousness. He/she definitely did not deliberately infect A. Negligence is out of question, because there is no general expectation to get regularly tested before having sex with anyone.
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