OGH: Duty to inform in the case of operations without a preference

Apr 8, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH), following a similar decision, confirmed the scope of the duty to inform when there is a choice between two similarly dangerous surgical procedures.

The plaintiff contacted an elective doctor due to a herniated disc. In the course of the explanatory discussion, she was informed that the surgery would not be performed by him personally, but by specialists of the defendant (operator of a hospital). She was also informed about the possible complications despite the utmost care and about the type of intervention as a classic open method or as an endoscopic intervention. However, at the end of the explanatory discussion it was not clear whether the plaintiff had a preference. The operation was performed endoscopically, and the plaintiff was the fifth patient of the surgeon to undergo this method. The plaintiff sought damages for nerve injury, right leg paralysis and pain, and liability for all future consequences, damages and disadvantages. She would have preferred the open method if she would had been properly informed.

The court of first instance granted the claim in the amount of just under EUR 79,000. The Court of Appeal overturned the decision with regard to the amount of the claim.

The OGH assessed the case as follows:

Referring to an older case law, the OGH stated that it was not necessary to inform the patient about the number of operations previously performed by the doctor using a certain method, if the doctor was allowed to perform the intended operation according to the rules of medical training and those on the practice of medical art. Nor does the doctor have to discuss all theoretically possible options for treatment or surgery with the patient on his own initiative. However, by informing the patient, he must enable the patient to make a self-determined decision. The Court of Appeal had rightly decided on the basis of the findings that "possibly endoscopic" surgery would be performed and that it had not been proven that the plaintiff preferred the open method. A breach of the duty to inform on the part of the defendant had to be dismissed.

OGH 4 Ob 174/21y (25.01.2022)