Supreme Court 31.01.2024, 3 Ob 206/23z
The duty to inform is an essential duty of the doctor. This means the doctor's obligation to inform patients before treatment begins about the essential circumstances, risks and consequences of the intended treatment, its omission (or also about treatment alternatives!), regardless of whether a treatment contract has been concluded. The question often arises as to how a breach of the duty to inform can specifically affect the doctor's liability.
This is exactly what the Supreme Court dealt with in its ruling of January 31, 2024 (3 Ob 206/23z). The plaintiff suffered from a so-called cleft lip and palate, a common malformation in newborns. The following procedures are necessary to correct the cleft lip and palate: lip closure surgery, cleft palate surgery and osteoplasty. Palate closure surgery can be performed in a single ("one-stage") or in two ("two-stage") procedures. Often it can only be decided during the operation whether the soft and hard palate can be closed in one procedure. At the age of four months, the plaintiff had already undergone lip closure surgery without complications, followed by cleft palate surgery. The plaintiff's parents wanted a two-stage closure in the second operation, which means that only the soft palate should have been closed initially. They declared their consent to this treatment ("soft palate closure") including all procedures that become necessary during the treatment. After the operation, however, the parents were informed that – against their consent – a one-stage closure had been performed.
Although the palatal closure surgery was performed lege artis and using a standard surgical technique, complications arose. The plaintiff had to be intubated again and transferred to the intensive care unit. Subsequent intensive care, support and rehabilitation were necessary.
Due to the breach of the doctor's duty to inform, the plaintiff sought compensation and a determination of liability. While the court of first instance was of the opinion that the failure to inform was not causal for the damage that occurred and thus denied liability, the Supreme Court followed the opinion of the appeal court, according to which the claim was justified because it was an unlawful intervention that was causal for the damage that occurred.
This case makes it clear that the patient's right to self-determination takes absolute priority. The fact that the same complication that occurred by fate could also have occurred during an operation to which consent was given does not release the doctor or hospital operator from liability. Even if the operation was medically indicated and carried out lege artis, if consent was not given, it is an unlawful treatment, for the consequences of which liability is incurred even if the patient acted in accordance with his or her duty.
15.02.2024