No 141/2005
Federal Court decides on single room in nursing home
The parties disagree on appeal nor the question of whether the defendant - the carrier of a nursing home - for the provision of a single room a surcharge may. The previous applicant, who died in the course of the dispute was based on a "home-preliminary" 27.8.1997 on 10.9.1997 included in the nursing home. She received care insurance benefits for care and Level III was fed through a PEG tube. She lived from the beginning as an individual, a room that was to cut the size of an occupancy by two people. The closed contract provided for the use of such a room, and the compensation therefor to be paid nothing. After the preliminary final but the conclusion of a residential service contract and the publication was one yet to be concluded under the Treaty Subject to § 75 SGB XI, to such a conclusion but it never came. From 1.1.1998, the defendant charged a daily Single room supplement of DM 57.90, € 29.60 later, by the supervisor of the applicant, who has inherited after her death also was paid up to 31.1.2003. Subject of the claim the reimbursement of any single supplements, which requires the applicant on the grounds that according to § 88 para 2 No 2 SGB XI granting and calculation of additional services is acceptable only if the offered additional services according to the nature, scope, duration and timetable and the level of charges and the payment had been previously agreed in writing between the nursing home and the patient, with its counterclaim, the defendant pay single supplements followed 1.2.2003 to 31.12.2003.
The district court has vindicated the plaintiff and awarded him in the € 54,972.75. This Court has held that recovery only in the amount of € 25,260.75 is justified and sentenced the plaintiff to the counterclaim for payment of € 5,437.74. Although it is also assumed that the absence of an effective agreement on the single supplement. But it has meant that the defendant stand because of the use of single room an enrichment claim in the amount of 16,00 € daily. The
III. Civil Division has restored the district court ruling, if it comes to single supplements. He has - as both lower courts - decided that the granting and calculation of additional services in nursing home agreements with recipients of care requires a prior written agreement between the patient and the home carrier. In order to satisfy the interest of the patient, which is in the form of coercion to § 88 para 2 No 2 SGB XI, has the III. Civil Division - based on its case law on ineffective electoral performance agreements to the Federal per diem charge regulation - including enrichment claims because of the use of such additional services declined. This includes, in individual cases, not that there is a resident under the principle of good faith may be refused on the lack of form an agreement to plead. But this is basically just a grossly disloyal behavior to assume that the Senate has denied in the dispute. In principle, can be expected from a home institution which completes a variety of home contracts on forms that he pays attention to the completion of a written agreement before he granted separately chargeable additional services.
Case of 13 October 2005 - III ZR 400/04
LG Nürnberg-Fürth - Decision, 27.2.2004 - 13 O 3886/03 /.. OLG Nuremberg
mountain - Decision of 11.10.2004 - 8 U 1069/04
Karlsruhe, 13 October 2005
