15.01.2019
According to established case law, medical interventions may only be carried out on the basis of the patient's informed consent to the respective intervention. The burden of proof that the patient has given his or her legally valid consent to the operation rests with the treating doctor or, in the case of treatment in hospitals, with the legal entity responsible for the hospital. If treatment carried out without legally valid consent or without adequate information has adverse consequences, the treating doctor/hospital is liable if the patient would not otherwise have consented to the treatment, even if no "malpractice" was committed during the treatment (for example, because the consequences of the operation occurred which were typical consequences or unavoidable complications). In other words: if consent was not given legally validly, the treating doctor is liable even if he or she acted lege artis (3 Ob 131/03 s).
The Supreme Court recently had the opportunity to comment on the Federal Law on the Conduct of Aesthetic Treatments and Operations (ÄsthOpG). In 6 Ob 120/18t, the subject was a breast lift, which was undisputedly carried out lege artis. Admittedly, complications that were "typical of the procedure" and frequently occurred occurred, which could subsequently be remedied by follow-up treatment. The plaintiff patient sought compensation and liability for permanent damage; the value in dispute was €25,832.00. What was undisputed was not whether or not the plaintiff had been informed, but when this had happened. According to Section 6 Paragraph 1 ÄsthOpG, an aesthetic operation may only be carried out if the patient has given their consent after comprehensive medical information, whereby in the case of an aesthetic operation, at least two weeks must elapse between the completion of the medical information and the consent. This regulation is intended to ensure that patients are given sufficient time to consider cosmetic surgery, which is usually not medically indicated, so that procedures are not ordered and carried out on a whim.
In the present case, according to the findings of the court of first instance, an explanation was given either on 04.06.2014 or on 15.06.2014, but the operation took place on 17.06.2014. The Supreme Court held that in neither of the two variants would the minimum time limit for the explanation, which must be observed according to the clear wording of the law, have been met, even if the time limit was "should have been missed even by one dayBecause the period of reflection (at most only one day!) was too short, the Supreme Court held that there was not sufficient consent, which is why the treating doctor was liable even if he had "no malpractice occurred during the treatment and only the usual surgical risk occurred“.
This ruling - which is the first to comment on the subject of consent for aesthetic treatments and operations - shows that case law attaches particular importance to sufficient and informed consent to operations. Failure to comply with the legally required period of reflection, even if only for one day, means that the practitioner is liable for the consequences of the operation that occurred even if the procedure had been carried out in accordance with the law.