Nobody likes going to the doctor, yet it is part of life. There are, however, situations where a medical visit is not due to a simple cold or minor injury, but because of a more serious intervention, in the course of which detailed and accurate information provided to patients is of key importance.
This article discusses a recent decision of the Austrian Supreme Court, which has shed new light on the scope of the duty to provide information and may offer important lessons for doctors practising near the border.
What was the background?
In autumn 2020, a patient suffered a severe vertebral fracture and received daily injections for one year to relieve his pain. In 2021, he registered at a hospital in Graz for a consultation regarding a potential operation that would undoubtedly have improved his condition. Before the operation, the patient was informed several times — including by the doctor himself — that the surgery involved serious risks, including paralysis.
In September 2021, on the day before the operation, the patient signed an information sheet stating that, in rare cases, the operation could become life-threatening and could have numerous consequences. These included, for example, permanent pain affecting the nerves or spinal cord, weakness or paralysis of the legs, and dysfunction of the bladder and anal sphincters, potentially resulting in complete paralysis. The patient accepted the risks associated with the operation; however, the surgery unexpectedly took a turn for the worse: the patient became paralysed from the waist down. As a result, the patient claimed EUR 234,000 in damages from the surgeon.
Both the court of first instance and the appellate court ruled against the patient, stating that the patient had been warned several times about the risks associated with the operation. The patient’s argument was not heard that the probability of paralysis in his case could have been as high as 17% — that is, one in six patients — which the doctors had not mentioned.
All the way to the Supreme Court
The Supreme Court ordered the regional court to conduct new proceedings in order to clarify how high the probability of paralysis occurring during the operation had been. If, in the new proceedings, the court concludes that the risk of paralysis was so high that the patient should have been specifically informed of it — rather than merely being told of it as a “possible” consequence — then the doctor breached his duty to provide information, the judges of the Supreme Court held (10 Ob 28/25b). They also noted, however, that account must also be taken of the likelihood that the patient would in any event have suffered paralysis in the near future without the operation.
I am a doctor practising near the border — what should I pay attention to?
If a doctor’s activities are specifically aimed at Austrian patients — whether through German-language advertising, route planning, contact details, or other German-language communication and contact — then, in the absence of a choice of law, it cannot be excluded that the rules of private international law, in particular the Rome I Regulation (Regulation (EC) No 593/2008), will apply. This may mean that the medical service and the protection of the consumer are more closely connected with Austrian law, so that in the event of a dispute the court may require the application of Austrian law, thereby extending the stricter duty to provide information to Hungarian doctors as well.
Summary
The court decision makes clear that the duty to provide information is not a mere formality. If there is a possibility of a significant complication occurring, it is not sufficient to refer to it only in general terms as a possible consequence; rather, its probability — preferably numerically — must also be explained to the patient.
As a doctor practising near the border, it is important to bear in mind that if your services are also directed at Austrian patients, Austrian law may be applicable.
Should you have any further questions, our law firm is also at your disposal in this area.
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