OGH, Urteil vom 23.11. 1999 — Ordnungsgemäβe ärztliche Aufklärung und Beweislast für Behandlungsfehler

Abstract

Concerning the facts of the decision see Spanish case note (1. Background facts). Any comment on the ruling by Austria's Supreme Court of 23 November 1999 must necessarily address the subject of patients' right to information. In Spain this right is recognised in article 10.5 of the Health Law, as well as in regional legislation in Catalonia and Galicia. Also required is reflection on information as one of the doctor's duties, particularly as a prerequisite for a patient to consent to an intervention and treatment proposed by the doctor responsible for his care (so-called “informed consent”). Furthermore, the issue of the secrecy by which doctors are bound must also be addressed, as regulated in different pieces of legislation, in order to determine its exact scope. Appropriate too is an examination of case law developments with regard to the burden of proof in civil liability generally and, more specifically, medical liability. In this latter area there has been a notable shift towards facilitating the position of the patient, among other ways by focusing on the better probatory position of the doctor. The present commentary concludes with brief reference to the negative consideration given by the courts to the plaintiff's refusal to relieve the doctors from their duty of secrecy. This consideration ultimately led the Austrian Supreme Court to send the proceedings back to the court of first instance, with instructions to question the doctors as witnesses and rule once again on the plaintiff's application. The case is annotated from the perspective of Spanish, Luxembourg and Greek law