Introduction
The Act on Medicinal Products (AMG)(1) and the Trade and Industry Act (GewO)(2) set strict rules on the sale of medicinal products. Broadly, only pharmacies may sell medicinal products to consumers. Pharmacies may also sell medicinal products not subject to prescription by distance selling, provided that:
the purchaser buys only the quantity needed for personal use;
the products are not negatively affected by shipping; and
the pharmacy provides advice during the order process.
Drugstores may sell to consumers only a limited number of medicinal products (primarily officinal plants), which are listed in the Ordinance Concerning the Distribution and Labelling of Certain Medicinal Products for Retail Sale (delimitation ordinance).(3) However, they may not sell such products via self-service or mail orders.
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If a doctor recognises a patient s need for certain medical treatment, the doctor must inform the patient of the necessity of such treatment and the risks associated with not having it. The scope of this medical information depends on the individual case and doctors are not required to indicate all possible consequences of the treatment.
Facts
On 4 May 2012 a patient (the plaintiff) consulted a doctor (the defendant) because he felt anemic, had a headache and vertigo and felt discomfort. The defendant diagnosed cephalea and referred the plaintiff to an MRI institute for a head examination. The examination was performed in May 2012 and the findings showed the possibility of a glioma. The findings were not discussed with the plaintiff at the institute. The plaintiff collected the MRI pictures personally and dropped them off at the defendant s surgery. He did not take notice of the pictures or the findings. The defendant reviewed the findings and decided that they had to be discussed