09.07.2020
Supreme Court 20.02.2020, 6 Ob 17/20y
The decision is based on a tragic fact:
In 2012, a patient (the later plaintiff) visited the practice of a general practitioner (the later defendant) because of various complaints (weakness, headaches, dizziness). The doctor referred the patient to an MRI institute for an MRI scan of the head.
The patient then brought the images taken during this examination and the corresponding findings to the doctor's office, but did not look at the images or the findings himself.
The general practitioner studied the results of the MRI scan and came to the conclusion that the findings should be discussed with the patient. In fact, however (as was established during the court proceedings), the findings required further specialist evaluation, although this was not extremely urgent. The doctor's practice first tried to contact the patient by telephone and then by phone. The patient did not respond to these attempts to make contact.
The patient did not experience any further symptoms until 2014, but in early 2015 he consulted an ophthalmologist because of vision problems. In the course of subsequent examinations, a brain stem glium (a tumor) was diagnosed in March 2015. During the court proceedings, it was determined that this disease could almost certainly have been diagnosed at an earlier stage with further medical evaluation.
The patient sued the general practitioner for (among other things) compensation for pain and suffering and loss of earnings, as well as for a determination of liability for future damages. The basis for the claim was the failure to inform the patient about the need to discuss the findings from the radiological examination at the MRI institute in 2012. The doctor did not explain the results of the MRI examination, in particular not that this would have required further clarification. This omission on the part of the doctor led to a delayed treatment of the disease (brainstem glioma).
In the first instance, the Feldkirch Regional Court came to the conclusion that the defendant doctor's attempts to contact the patient to discuss the findings were not sufficient. It stated that the doctor could have sent registered letters or made further attempts to contact the patient and that the failure to ensure that the patient was informed should be judged as medical malpractice.
The first instance judgement was overturned in the second instance. There was indeed a medical error in the broader sense. However, there was an alternative causality between the medical error on the one hand and an accident for which the patient was responsible on the other (in simple terms: both were "to blame" for the delayed diagnosis). This would result in the damage being divided between the doctor and the patient, although more detailed findings would be required regarding the extent of the doctor's liability.
Unlike the lower courts, the Supreme Court considered the doctor's efforts to make contact to be sufficient. It pointed out the patient's possibility of calling back after missing a call to the doctor's office and the patient's obligation to inform the doctor of any change in his or her telephone number.
The Supreme Court also indirectly clarified that the doctor, as part of his duty to inform, is not obliged to inform the patient in writing about the content and significance of the MRI findings, because anyway “a merely written explanation […]not enough [would have], an immediate personal consultation is necessary in order to ensure that the patient is properly informed.” The Supreme Court referred to the patient’s personal responsibility and, in the absence of unlawful and culpable conduct on the part of the doctor, dismissed the lawsuit.
The OGH's statements are also to be agreed with with regard to the duty to provide information of other professions - it would probably also be unreasonable for a notary or tax advisor to discuss complex factual and legal issues in writing (especially without any particular urgency) with clients who cannot be reached by telephone and do not respond (and thus indicate that they are not interested in being contacted).
However, for practical reasons, it must be questioned whether the doctor might not actually be obliged, at least in particularly urgent cases (e.g. when a serious illness is imminent), to inform the patient in the course of contacting him by post that the findings at hand make further clarification or further examinations necessary as soon as possible - however, the present facts did not provide any reason for such considerations.