15.12.2021
Doctors are often called upon to make claims due to suspected medical errors. Such lawsuits often come to nothing (on the one hand because medicine – just like law – is not an exact science [there is scope for maneuver] and on the other hand because the doctor also only owes ex-ante diligence [he cannot therefore be blamed if he knows better in hindsight, as long as he has complied with the state of the art in the treatment]. Furthermore, the area of medical liability is a well-established field because such matters are generally covered by legal protection insurance (if there is a legal protection insurance contract), and on the other hand the defendant medical practitioner generally has liability insurance, which is why it can generally be assumed that a judgment won will also be fulfilled. Finally, in medical liability proceedings, the patient who believes he has been badly treated or wrongly diagnosed also has the opportunity to have his state of health checked again in court proceedings and, if necessary, to find someone to blame; Of course, even if it turns out in court that there was no medical malpractice, the case is often resolved amicably.
There are essentially two broad groups of cases: on the one hand, liability for treatment errors (which also include diagnostic errors), and on the other hand, liability due to a breach of the doctor's duty to inform. Liability for treatment errors is easy to explain: if a treatment measure is carried out or a diagnosis is made that does not correspond to the state of the art (regardless of whether this is subjectively the fault of the doctor in question or not), liability arises for the damage caused as a result. The doctor in question did not make the diagnosis or prescribe the treatment that should have been made or prescribed, and is therefore liable for the damage caused as a result. Liability for failure to inform, on the other hand, is based on the fact that a patient would not have accepted a treatment measure if he had known that this or that risk was imminent. Liability for breaches of the duty to inform is more interesting in that the duty to inform is a flexible one; it depends on the specific situation, the urgency of the medical measure, but also the patient's desire to be informed at all (or at most to trust the doctor blindly).
A very rare species is treatment without consent, which is not linked to a lack of information. Treatment without consent is unlawful, and the doctor is liable for any adverse consequences even if the procedure itself is medically indicated and was carried out lege artis. In other words: if the patient has not consented to the treatment, the doctor is liable for all adverse consequences, even if they were unavoidable, caused by correct medical procedures, or are complications that are entirely within the scope of what is to be expected.
In this context, the Supreme Court recently had to assess an interesting situation (7 Ob 124/21t of September 25, 2021): The patient trusted that the senior physician would operate on him personally. The senior physician also expressly assured the patient of this personal activity. Of course, the senior physician did not operate himself, but only supervised the operation. There were adverse consequences and the patient sued for damages and a declaratory judgment (total value in dispute € 34,252.40). The Supreme Court initially held that the patient did not have the right to be operated on only by a specific senior physician. However, if the treatment contract was based on the patient's wish to be operated on only by a specific doctor and this doctor had also promised this, no other doctor was allowed to operate on the patient. If, as in the present case, the operation was not carried out by the senior physician but only by an assistant physician (albeit under the supervision of the senior physician!), the consent would not extend to this operation. It would be an unlawful treatment measure, which is why the defendant hospital would be liable for the adverse consequences of this (however appropriate) operation.