LG Bonn - 9 O 158/21

LG Bonn - 9 O 158/21
Court:	LG Bonn (Germany)
Jurisdiction:	Germany
Relevant Law:	Article 4(1) GDPR Article 4(6) GDPR Article 15 GDPR Article 82 GDPR § 630a BGB
Decided:	29.08.2022
Published:
Parties:
National Case Number/Name:	9 O 158/21
European Case Law Identifier:	ECLI:DE:LGBN:2022:0829.9O158.21.00
Appeal from:
Appeal to:	Appealed - Confirmed OLG Köln (Germany) 15 U 184/22
Original Language(s):	German
Original Source:	NRWE (in German)
Initial Contributor:	n/a

A data subject sued a controller for malpractice and delayed data disclosure under Articles 15 and 82 GDPR. The court found no treatment errors and ruled the controller had met its GDPR obligations.

English Summary

Facts

The plaintiff, who suffered severe shoulder pain and had an unstable biceps tendon, underwent surgery at the defendant hospital on 10 January 2019. Despite an elective medical agreement with the defendant anesthesiologist, he did not participate in the surgery due to unavailability. Post-surgery, the plaintiff reported numbness in her left cheek and speech difficulties, which she claimed were initially dismissed by the hospital staff. Subsequent medical evaluations found no acute issues, but a suspected hypoglossal nerve palsy was diagnosed. The plaintiff declined the recommended corticosteroid therapy.

On 16 February 2019, the plaintiff requested full disclosure of her medical data under GDPR from the hospital, which provided her treatment documentation, claiming it was complete. In November 2019, she initiated an independent evidence procedure, resulting in an expert report. The plaintiff claimed the surgery caused nerve damage due to faulty intubation and positioning and that the hospital's response to her complaints was inadequate and delayed. She also alleged insufficient information on corticosteroid therapy, leading to her rejection of the treatment, and claimed ongoing health issues and job loss due to the surgery complications.

Holding

The court dismissed the plaintiff's claims, ruling that no treatment errors occurred during the surgery or in the hospital's response to her complaints. The expert testimonies confirmed that the surgery and postoperative care were conducted according to medical standards. The court found the plaintiff's positioning and intubation during surgery to be proper and the complications she experienced to be rare, inherent risks not resulting from malpractice. The documentation of the plaintiff's care was deemed sufficient, and the plaintiff's claim of earlier complaint communication was unsupported.

Regarding the GDPR claims, the court held that the hospital had provided all required personal data and adequately fulfilled its disclosure obligations. The plaintiff's request for further data and damages for delayed information was unfounded. The court found no evidence of additional undisclosed personal data or any harm caused by the timing of the provided information. Consequently, the court imposed the legal costs on the plaintiff and dismissed her claims for compensation and further data disclosure.

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English Machine Translation of the Decision

The decision below is a machine translation of the German original. Please refer to the German original for more details.

Tenor:

It is ruled that:

The complaint is dismissed.

The costs of the legal dispute are imposed on the plaintiff.

The judgment is provisionally enforceable against a security deposit amounting to 120% of the respective amount to be enforced.

1 Facts 

2 The plaintiff takes action against the defendants due to and in connection with an alleged faulty treatment during an inpatient stay from 06-15.01.2019 at the premises of the first defendant, seeking information and damages for pain and suffering due to delayed information. 

3 The plaintiff presented herself with a transmural SSP and ISP defect in the right shoulder at the premises of the first defendant. Additionally, there was an unstable biceps tendon. She presented with severe immobilizing pain in the right shoulder, making home care no longer possible. The plaintiff was operated on the right shoulder under general anesthesia on 10.01.2019 during the aforementioned inpatient stay. Although there was an elective medical agreement with the second defendant, the chief anesthesiologist at the first defendant's premises, dated 09.01.2019, he was not part of the surgical team due to an impediment. During the surgery, an arthroscopic SingleRow reconstruction with SpeedBridge (three FiberTapes, two SweiveLock 4.75) and a suprapectoral biceps tenodesis with 6.25 SweiveLock was performed. The plaintiff was positioned in the so-called beach-chair position, where the patient takes a more sitting position compared to lying flat on the operating table, similar to a deckchair. The patient's head is fixed in the beach-chair position with special positioning bowls and supports. 

4 The plaintiff subsequently experienced various complaints, which are disputed in detail and particularly in their chronological sequence. On 12.01.2019, the treatment documentation of the first defendant mentioned for the first time a subjectively perceived numbness in the left cheek area as an impairment, while no speech disorder was detected by the visiting anesthetist. Consequently, a neurological consult, an ENT consult, and an MRI were ordered, with the MRI being performed on 14.01.2019. The MRI finding showed no indication of sub-/acute ischemia or a detectable space-occupying haematoma. The ENT specialist on 14.01.2019 diagnosed a suspected left hypoglossal nerve palsy and recommended corticosteroid therapy and a follow-up examination. The plaintiff declined the corticosteroid therapy. 

5 By letter from her lawyer dated 16.02.2019, the plaintiff requested complete data disclosure from the first defendant pursuant to Art. 15 in conjunction with Art. 4 No. 1 and 6 GDPR regarding the personal data held about her. The first defendant then provided the plaintiff with the treatment documentation, stating it was complete. 

6 In November 2019, the plaintiff initiated an independent evidence procedure before this chamber (9 OH 13/19). In this procedure, the expert Prof. Dr. A issued an anaesthesiology report on 09.10.2020, which he also orally explained in a hearing on 09.12.2020. 

7 The plaintiff claims that a hypoglossal nerve injury occurred during the anaesthesia due to treatment errors, specifically due to faulty intubation and/or faulty positioning during the surgery. She assumes her head was not positioned according to standard during the operation. As a result, the nerve was damaged by pressure or traction from the tube. The positioning during the surgery was inadequately documented. 

8 Additionally, the first defendant allegedly responded incorrectly to the complaints she raised; it was only on 14.01.2019 that they responded, albeit belatedly. She had already noticed speech difficulties at around 10:00 PM on 10.01.2019 in a conversation with a nurse, which worsened over time. She reported the complaints to doctors during the round on 11.01.2019. The problems manifested particularly in the accumulation of saliva in her mouth when trying to speak, making clear speech impossible. She also had issues with solid food, experienced gagging and coughing fits when lying down, and repeatedly vomited food residues. These issues severely disrupted her life. With earlier intervention by the first defendant, her complaints could have been better treated, positively impacting her healing process. 

9 The plaintiff initially claimed she was inadequately informed about the corticosteroid therapy. She declined the therapy due to disagreement among treating physicians. Had she been properly informed and educated, she would have consented to the therapy with near certainty. In her brief dated 15.01.2022, she claimed she rejected the therapy due to past adverse reactions to corticosteroid treatments. 

10 The plaintiff further asserts that the treatment errors and inadequate response to her post-operative complications resulted in permanent damage. She still suffers from swallowing difficulties, resulting in constant saliva flow, and liquid escapes from the corner of her mouth when consuming drinks, soup, or yogurt. Her pillow is wet from saliva overnight. She also suffers from a "nervous tic," significantly disrupting her daily life. Moreover, she claimed she had taken a new job on 01.11.2018, which her employer terminated during the probationary period on 22.01.2019 due to her sick leave caused by neurological issues, particularly speech difficulties essential for her job. She believes she is entitled to at least €10,000 in damages for pain and suffering. She also claims reimbursement of pre-litigation attorney's fees amounting to €2,077.74. 

11 Despite the defendant supplementing their data disclosure multiple times during the process, specifically with briefs dated 14.04.2022, including an attachment (Bl. 379-381 d.A.), a letter dated 12.07.2022 (Bl. 604-606 d.A.), a brief dated 01.08.2022, including attachments (Bl. 626-642 d.A.), and oral arguments on 12.08.2022 (Bl. 665-668 d.A.), the plaintiff claims that further personal data about her is still held by the first defendant, which has not been disclosed. This includes telephone memos and email correspondence, particularly in light of the current proceedings and prior correspondence with the liability insurer of the first defendant. She also believes she is entitled to at least €1,000 in damages for delayed disclosure, as the lack of knowledge about her data and processing activities causes insecurity and psychological stress. 

12 The plaintiff initially requested, in application no. 4, that the first defendant be ordered to provide her with complete data disclosure under Art. 15 in conjunction with Art. 4 No. 1 and 6 GDPR beyond the treatment documentation annexed to the brief of 21.11.2019. She has since declared partial settlements with briefs dated 21.04.2022, 28.07.2022, and 05.08.2022, as well as in the oral hearing on 12.08.2022. The first defendant agreed to the partial settlement declaration on 12.08.2022 but opposed the other partial settlement declarations. 

13 Thus, the plaintiff's final application requests the court to declare the settlement due to the unilateral partial settlement declarations dated 21.04.2022, 28.07.2022, and 05.08.2022, and additionally, 

14 1.       to order the defendants as joint debtors to pay her damages for pain and suffering due to the treatment errors in 2019, at the court's discretion, but not less than €10,000, plus 5% interest above the base rate since the lawsuit was filed; 

15 2.       to declare that the defendants as joint debtors are obliged to compensate her for all material damages already incurred or to be incurred in the future due to the 2019 treatment errors, as long as the claims have not or will not be transferred to social security carriers or other third parties; 

16 3.       to order the defendants as joint debtors to reimburse her for pre-litigation attorney's fees amounting to €2,077.74, plus 5% interest above the base rate since the lawsuit was filed; 

17 4.       to order the first defendant to provide her with complete data disclosure under Art. 15 in conjunction with Art. 4 No. 1 and 6 GDPR beyond the treatment documentation annexed to the brief of 21.11.2019, provided that this claim has been partially settled by the unilateral partial settlement declarations dated 21.04.2022 (Bl. 386 d.A.), 28.07.2022 (Bl. 602 d.A.), 05.08.2022 (Bl. 651 d.A.), and 12.08.2022; 

18 alternatively 

19 to order the first defendant to provide her with complete data disclosure according to Art. 15 GDPR, particularly concerning the personal data transmitted to its liability insurance; 

20 5.       to order the first defendant to pay her appropriate damages for delayed data disclosure under Art. 15 GDPR based on Art. 82 (1) GDPR , plus 5% interest above the base rate since 27.06.2022. 

21 The defendants request 

22 the dismissal of the lawsuit. 

23 The defendants challenge the standing of the second defendant. 

24 They argue that both the anaesthesia and the positioning were conducted according to the rules of medical practice. The plaintiff was intubated without complications using a 7-tube, as confirmed by the expert Prof. Dr. A in his report during the independent evidence procedure. Additionally, no damage resulted from the positioning. This did not involve a fully controllable risk. The expert Prof. Dr. A had already stated that such damages could not be ruled out even with proper positioning. 

25 The defendants argue that they have fully complied with their documentation obligations, with the indication of the positioning being sufficient. It was not necessary to document how the head was fixed during intubation. This was already clear from the mention of the positioning. 

26 The defendants claim that the plaintiff first reported a subjectively perceived numbness in the left cheek and tongue on 12.01.2019, but without speech disorders, as established by the examining anesthetist. Had this occurred earlier, it would have been noted in the treatment documentation. Furthermore, there was no disagreement among the treating physicians; rather, the plaintiff declined the corticosteroid treatment after proper information and clarification. 

27 The first defendant had provided the plaintiff with comprehensive and complete disclosure of the personal data processed by them. No further personal data of the plaintiff beyond those disclosed, including treatment records and personal data from the expert procedure, the independent evidence procedure, and the present procedure, were present or transmitted to the liability insurance manager X Z GmbH in Y, which ultimately stands behind Z Insurance as the liability insurer. Further communication between the first defendant and the liability insurance manager or the liability insurer, including notes, did not include further personal data of the plaintiff beyond those already mentioned. 

28 The lawsuit was served on the first defendant on 13.08.2021 and on the second defendant on 12.08.2021. The file of the independent evidence procedure 9 OH 13/19 was part of the oral hearing and discussion. Additionally, evidence was taken in the present procedure by obtaining a written expert opinion from the expert PD Dr. B on 23.01.2022, which he explained in the oral hearing on 11.03.2022. Furthermore, in this hearing, the expert Prof. Dr. A also explained his report from the independent evidence procedure. For the results of the evidence, reference is made to the written expert opinions (Bl. 216 ff. d.A. 9 OH 13/19 and Bl. 221 ff. d.A.) and the hearing minutes of 11.03.2022. The chamber also informally heard the plaintiff during the oral hearing on 11.03.2022. For the content of the informal hearing, reference is also made to the hearing minutes of 11.03.2022. 

29 The plaintiff submitted further briefs on 14.08.2022 and 23.08.2022. 

30 Reasons for the decision 

31 The lawsuit is inadmissible regarding the main application no. 4 and the related unilateral settlement declarations of 21.04.2022 and 05.08.2022. 

32 The original application already lacked the necessary specificity according to § 253 (2) no. 2 var. 3 ZPO. 

33 In this respect, the application corresponds to the specificity required for enforcement of the tenor of a judgment granting the claim (see BGH, judgment of 22.11.2007 - I ZR 12/05 -, GRUR 2008, 357). 

34 For the enforcement of an action, it is necessary that the debtor can recognize in which cases they must expect a coercive measure. Clarifying the scope of the owed actions must not be shifted to the enforcement procedure. On the other hand, the principle of the rule of law and the resulting requirement of effective legal protection demand that material claims can be effectively enforced with the help of enforcement. 

35 A title is specific enough and suitable for enforcement if it specifies the creditor's claim and the scope of their performance obligation. The enforcement body must be able to carry out the enforcement using only the title without consulting the court files or other documents. Although the title itself is subject to interpretation, it is insufficient if it refers to documents not part of the title or if the performance can only be determined from the content of other documents (BGH, judgment of 6.11.1985 - IVb ZR 73/84, NJW 1986, 1440; BGH judgment of 27.02.2013 - IV ZR 42/11). 

36 The obligation to provide information is sufficiently specific if it enables the determination of what information must be disclosed and what must not. This must be assessed not only from the perspective of the creditor and the debtor but also from the competent enforcement body. It must be able to determine whether the titled obligation has been fulfilled (see BAG BeckRS 2021, 46578 para. 17, 33; NJW 2021, 2379 para. 20; BeckOK ZPO/Ulrici, 45th ed. 1.7.2022, ZPO § 704 para. 9a.1.6, para. 9a.6). 

37 The application did not originally meet these requirements. Therefore, the data disclosure aimed at providing further information, but "beyond the treatment documentation annexed to the brief of 21.11.2019." This pre-litigation letter, including annex 31, was not submitted as an attachment to the court file. Regardless of this, a reference to file contents cannot contribute to the specificity of the title and thus the application. This also applies to enforcement according to § 888 ZPO, for which the chamber is exclusively competent according to §§ 888 (1), 802 ZPO. However, since court files are destroyed after five years according to the NRW retention regulation, except for titles, a reference to file contents cannot meet the specificity requirement. The specificity of an application cannot depend on whether it is expected that enforcement of the title will be completed within this time, as the title can still serve enforcement beyond that. The composition of the chamber can also change. 

38 The plaintiff's settlement declarations of 21.04.2022, 28.07.2022, 05.08.2022, and 12.08.2022 did not make the application specific. 

39 The declarations of 21.04.2022 and 05.08.2022 are also too vague. 

40 Settlement declarations are procedural actions that, although not subject to the restrictions of § 263 ZPO according to § 264 no. 2 ZPO, must meet the specificity requirements of § 253 (2) no. 2 var. 3 ZPO as they affect the subject matter of the dispute. 

41 The first defendant provided further submissions in the briefs dated 14.04.2022 and 01.08.2022, each with attachments. Much of the submissions refer to the procedural situation and general remarks. While personal data was disclosed, it is unclear from the plaintiff's general settlement declarations which specific disclosures are considered as fulfilling the right to information about personal data. This is necessary for the specificity of the settlement declaration, as the unilateral settlement declaration partially changes the lawsuit to seek a declaration that the lawsuit was admissible and justified until the claimed event occurred and has become inadmissible or unfounded due to this event (BGH, judgment of 11.12.2015 – V ZR 26/15 -, NJOZ 2016, 1793). 

42 For example, the following statements by the defendant in the brief dated 14.04.2022 do not contribute to fulfilling the plaintiff's right to information: 

43 "The plaintiff's representative is inexplicably obtuse and insists on irrelevant doctrinal discussions up to empty formalities, while his concern has been overfulfilled by providing the entire treatment records. 

44 The situation of the defendant can be compared to a farmer who waters his dry fields abundantly, while the agronomist insists that a few drops of water should fall from the sky. In this way (expressis verbis: by submitting the entire treatment records), the information can also be provided." 

45 Nevertheless, the plaintiff bases her settlement declaration – also – on this submission. The plaintiff does not specify, as would have been necessary, the event claimed to have led to the settlement in the legal sense, but merely the document in which the settling event – the content of the information – is to be sought. 

46 Otherwise, the lawsuit is admissible but unfounded. 

47 II. 

48 The plaintiff has no legal claim for damages for pain and suffering against the defendants due to faulty treatment. Such a claim does not arise from §§ 630a (1), (2), 280 (1), 823 (1), 253 (2) BGB, as the evidence does not convincingly establish that the treatment of the plaintiff at the premises of the first defendant on 10.01.2019 was faulty. 

49 A treatment error is comprehensively understood as behaviour inconsistent with the medical standard, whereby the deviation from the applicable professional standard is decisive, see § 630a (2) BGB. 

50 The court's conviction cannot be determined by mathematical methods and should not be based solely on probability calculations (BGH, judgment of 28.03.1989 – VI ZR 232/88 = NJW 1989, 3161). Absolute certainty is not required; a degree of certainty sufficient for practical life that silences doubts without eliminating them completely is necessary. Doub ts based on merely theoretical possibilities for which there are no actual indications are not relevant (BGH, judgment of 11.12.2012 - VI ZR 314/10 = NJW 2013, 790). 

51 According to these standards, based on the expert opinions of Prof. Dr. A and PD Dr. B, the court is not convinced that the plaintiff's surgery on 10.01.2019 was conducted in a faulty manner, nor that the response to the plaintiff's postoperative complaints was faulty. 

52 The expert opinions of Prof. Dr. A and PD Dr. B are coherent, internally consistent, very understandable, and comprehensible for a layperson. The experts clearly and vividly explained complex medical and scientific relationships. They based their opinions on a comprehensive evaluation of the treatment records. PD Dr. B convincingly explained in the oral hearing on 11.03.2022 that the incorrect birth date of the plaintiff was a clerical error. The court has no doubts about the accuracy of the experts' medical findings and fully agrees with their conclusions. 

53 The plaintiff bears the burden of proof for the treatment error. There is no reversal of the burden of proof based on the principles of fully controllable risk. These principles can apply to the proper positioning of the patient on the operating table and its monitoring during surgery to avoid positioning injuries, but this is not always and necessarily the case (see OLG Cologne, decision of 13.05.2015 - 5 U 166/14). These principles do not apply if injuries can occur even with proper positioning. The experts Prof. Dr. A and PD Dr. B consistently stated that the beach-chair position, compared to the conventional lying position on the operating table, carries a higher risk of complications. Even with proper positioning, injuries cannot be ruled out. The plaintiff experienced such a rare inherent complication. Therefore, there is no fully controllable risk on the part of the defendant. 

54 The plaintiff also does not benefit from other evidentiary facilitation, as the documentation of her positioning is adequate. The specific positioning is sufficiently documented in the treatment records. It is not necessary to document how the head was fixed during intubation. Since the purpose of medical documentation is to inform subsequent treating physicians, the documentation of the injury and symptoms for further therapy is essential, not the exact manner of positioning. These requirements are met here. The expert PD Dr. B convincingly explained that the beach-chair position is a standard position and that any surgeon would understand the positioning from this term. The absence of further details indicates that the positioning was without complications. Documenting the use of special straps or aids or a fall from the position would be necessary. The absence of such notes indicates standard positioning. Standardized aids used to fix the patient in the beach-chair position are part of the operating table and understood from the documented position. The expert Prof. Dr. A confirmed in the oral hearing on 11.03.2022 that he also considered the documentation proper. The positioning is noted in both the OR protocol and report, as well as in the anaesthesia protocol. Both experts agree that the plaintiff remained in the same position throughout the surgery, and no repositioning was necessary. 

55 The plaintiff retains the burden of proof that the anaesthesia or positioning was improper. This proof has not been provided. 

56 The anaesthesia during the plaintiff's surgery on 10.01.2019 was proper. The expert Prof. Dr. A found in his independent evidence report that the anaesthesia was performed according to guidelines. There were no indications of traumatic tube insertion, and no difficult airway or other complications were expected based on preoperative findings. This was confirmed in the oral hearing on 11.03.2022, with additional clarification that the cuff pressure was measured and within normal limits. The anaesthetist had no reason to suspect nerve impairment. 

57 The choice of the beach-chair position, despite its higher complication risk, was not faulty since it was indicated for the shoulder surgery. The expert PD Dr. B stated that this position is standard for shoulder surgeries and widely used in Germany. Standardized medical devices were used for positioning, indicating proper positioning. Although the beach-chair position is more complication-prone, it was indicated, and no complications were documented during the surgery. 

58 Both experts concluded that the plaintiff's injury was a rare inherent complication that could occur even with proper positioning, indicating a fate-based outcome. Prof. Dr. A explained that the possible cause of nerve damage remains speculative and not due to a treatment error. 

59 There is no evidence that the postoperative response to the plaintiff's complaints was faulty or delayed. The plaintiff's claim that she reported symptoms to a nurse on 10.01.2019 is unsupported. The court indicated on 05.11.2021 that the plaintiff had not sufficiently proven the postoperative events. The plaintiff only requested an expert opinion, which is unsuitable for reconstructing actual events or conversations. The treatment records first document complaints on 12.01.2019, and the plaintiff did not testify to having reported them earlier. 

60 The response to the plaintiff's complaints on 12.01.2019 was proper. Prof. Dr. A stated that an MRI was promptly ordered to exclude circulatory disorders, which was not time-critical after excluding ischemia. The proposed corticosteroid therapy was correct, but the plaintiff declined it. There were no equivalent alternative therapies. 

61 The plaintiff initially claimed she rejected corticosteroid therapy due to disagreements among treating physicians, but later stated she declined it due to previous adverse reactions. This final claim was consistent with her testimony. 

62 Since no treatment error occurred, the standing of the second defendant is irrelevant. 

63 III. 

64 The plaintiff cannot claim damages for future material losses due to the absence of a treatment error. 

65 IV. 

66 The legal dispute has not been partially settled regarding application no. 4 due to the events named in the settlement declaration of 28.07.2022, as the application was originally inadmissible due to lack of specificity. 

67 V. 

68 Since the main application no. 4 is inadmissible, the court considers the alternative application no. 4. 

69 The application is sufficiently specific, as the scope of the "complete" disclosure is determined by law (see BGH, judgment of 15.06.2021 - VI ZR 576/19, para. 32). 

70 The information claim is unfounded. 

71 Under Art. 15 (1) GDPR, the data subject has the right to request confirmation from the controller as to whether personal data concerning them are being processed; if so, they have the right to access this data and further specified information. The right to a copy of the data under Art. 15 (3), (4) GDPR was not claimed. 

72 The plaintiff limited her claim to information on personal data processed by the first defendant under Art. 15 (1) GDPR. This right includes specific information but is separate from the right to access personal data, which covers "any information relating to an identified or identifiable natural person." The recipient is a natural or legal person, authority, agency, or other body to whom personal data is disclosed, not part of personal data. The right to copies under Art. 15 (3) GDPR is not included in the information claim. 

73 The first defendant fulfilled the information claim with their statements during the oral hearing on 12.08.2022. 

74 An information claim is fulfilled under § 362 (1) BGB when the debtor's statement covers the entire scope of the information owed. Any suspicion of incomplete or incorrect information does not justify a further information claim. The essential element is the (possibly implicit) declaration that the provided information is complete (see BGH, judgment of 3.09.2020 - III ZR 136/18, GRUR 2021, 110 para. 43 with references). The defendant's information must clearly cover the entire legitimate request. If specific categories are not addressed, further information can be requested (see BGH, judgment of 6.03.1952 - IV ZR 45/50 and - IV ZR 16/51, BeckRS 1952, 103508 para. 28 f.; Bittner/Kolbe in Staudinger, BGB, revised 2019, § 260 para. 36 and § 259 para. 32 – all cited from BGH, judgment of 15.06.2021 - VI ZR 576/19, para. 20). 

75 The first defendant undisputedly provided information, sending treatment records with a completeness statement, submitting non-disputed information in the letter of 12.07.2022, and naming recipients of personal data in the oral hearing on 12.08.2022. They declared no further personal data of the plaintiff beyond those already disclosed and confirmed no further communication containing personal data with their liability insurer. Thus, the defendant's negative statement completed the information claim. 

76 The plaintiff's claim for internal (telephone) notes or correspondence with recipients or third parties generally does not exist. Correspondence or internal notes may contain personal data, but the first defendant declared that no additional personal data beyond those already disclosed were included. This negative statement fulfilled the information claim. 

77 The requested address of X Z GmbH in Y is not part of the personal data to be disclosed. This falls under the information obligation of Art. 15 (1)(c) GDPR. The same applies to the naming of Z Insurance and the information on personal data transmitted to recipients. 

78 VI. 

79 The plaintiff has no claim for €1,000 in damages for delayed information under Art. 82 (1) GDPR. 

80 Each person has a right to compensation for material or non-material damage caused by a GDPR violation. 

81 Recital 75 GDPR states: 

82  "The risks to the rights and freedoms of natural persons, with varying likelihood and severity, can arise from the processing of personal data, which may result in physical, material or non-material damage, in particular where the processing may lead to discrimination, identity theft or fraud, financial loss, damage to reputation, loss of confidentiality of data protected by professional secrecy, unauthorized reversal of pseudonymisation, or any other significant economic or social disadvantage; where data subjects might be deprived of their rights and freedoms or prevented from exercising control over their personal data; where personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, and the processing of genetic data, health data or data concerning sex life or criminal convictions and offences or related security measures are processed; where personal aspects are evaluated, in particular analyzing or predicting aspects concerning performance at work, economic situation, health, personal preferences or interests, reliability or behavior, location or movements, in order to create or use personal profiles; where personal data of vulnerable natural persons, in particular of children, are processed; or where processing involves a large amount of personal data and affects a large number of data subjects." 

83 Recital 85 states: 

84 "A personal data breach can, if not addressed in an appropriate and timely manner, result in physical, material or non-material damage to natural persons such as loss of control over their personal data or limitation of their rights, discrimination, identity theft or fraud, financial loss, unauthorized reversal of pseudonymisation, damage to reputation, loss of confidentiality of data protected by professional secrecy or any other significant economic or social disadvantage to the natural person concerned." 

85 Although the term "damage" should be interpreted broadly in light of CJEU case law to fully meet the GDPR's objectives (see Recital 146), the Regulation does not equate a violation with damage. Recitals 75 and 85 indicate that damage, including significant economic or social disadvantages, may result from a violation. Preventing such damage is an objective of the Regulation. 

86 The plaintiff's reference to the OLG Cologne judgment of 14.07.2022 - 15 U 137/21 - (Bl. 556ff. d.A.) does not change this. 

87 The plaintiff has not substantiated a claimed non-material damage due to delayed information. Considering the plaintiff was already aware of the disclosed information through treatment records, participation in expert proceedings, independent evidence procedure, and the present procedure, it is not clear how the delayed additional information caused her relevant impairment. 

88 VII. 

89 The plaintiff is not entitled to reimbursement of pre-litigation attorney's fees plus interest, as the lawsuit fails. The plaintiff exclusively based the application no. 3 on the attorney's engagement regarding medical liability issues. The application in the independent evidence procedure dated 21.11.2019, titled "Medical Liability," did not address data protection claims. The dispute value was set at €30,000 solely for medical liability issues. The plaintiff claims pre-litigation attorney's fees from this value, prioritizing it before the data disclosure claim. 

90 VIII. 

91 Any new factual submissions by the plaintiff in briefs dated 14.08.2022 and 23.08.2022 are rejected as late under § 296a ZPO. A reopening of the proceedings based on these submissions under § 156 (1) or (2) ZPO is not warranted. 

92 The cost decision is based on §§ 91 (1), 91a (1) ZPO. Since the main application no. 4 was originally inadmissible due to lack of specificity, the costs, including those related to the partial settlements agreed in the oral hearing on 12.08.2022, are imposed on the plaintiff. 

93 The decision on provisional enforceability is based on § 709 (1) and (2) ZPO. 

94 The dispute value is set at €16,000.