OGH: Compensation for Wrongful Birth

Feb 16, 2024 Benn-Ibler Rechtsanwälte

A long-standing legal dispute ends. The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH, in a ruling by its enlarged Senate, has now decided on the claim for compensation by parents after the wrongful birth of a child as a result of a medical error.

This ruling is a departure from the OGH’s previous inconsistent case law that the birth of a healthy child could never be the subject of a claim for damages. Henceforth, the cases of wrongful conception of a healthy child and wrongful birth of a disabled child will not differ. From a tort perspective, since the child would not have been born if the doctor had not made a mistake, both situations must be assessed in the same way.

A lawsuit was brought by the parents of a daughter who was born with a severe physical disability. The defendant, a gynaecologist and prenatal diagnostician, could have detected the girl’s disability as early as during the ultrasound examination within the first trimester of the pregnancy if he had paid the appropriate attention during the screening. If the doctor had acted lege artis and had informed the parents of the disability of the unborn child, they would have decided in favour of an abortion. The plaintiff parents are therefore seeking compensation from the defendant doctor for all damage they have suffered, in particular the full cost of the child’s care, as well as a declaration of his liability for all future damage.

The defendant’s argument was that his liability, if any and at all, was only for the additional care expenses due to the child’s disability.

The financial interests of the parents in preventing the conception of a child are covered by the protective purpose of the medical treatment contract, both in the case of a medical intervention for contraception, such as a vasectomy, and in the case of prenatal diagnostics.

According to the OGH, the physician is liable, regardless of any disability of the child, in particular for the care expenses that the parents have to bear for the child, because the child would not have been born if the parents had been properly informed. Given that the child is severely handicapped, her entire care expenses, not just the additional expenses caused by her handicap, need to be recognised.

OGH 3 Ob 9/23d (21 November 2023)