Unfortunately, medical treatments do not always go as planned. However, not every complication automatically leads to medical liability. The decisive factor is whether a legally relevant error has occurred.
In this article you will find out, When medical liability exists, what claims exist and what is important when enforcing them.
What is medical malpractice?
Medical malpractice refers to the legal responsibility of doctors or hospitals when patients suffer damage as a result of incorrect treatment.
In Austria, this is legally based in particular on the treatment contract and general rules of tort law. The prerequisite for medical liability is always that the doctor's duty of care has been breached.
Important:
A doctor does not owe a successful treatment - but a treatment according to the current state of medical science („lege artis“).
When does a treatment error occur?
A liability-relevant error exists if there is a deviation from recognised medical standards.
Typical examples are
- Incorrect diagnosis or delayed diagnosis
- Unsuitable or incorrectly performed therapy
- Inadequate assessment of findings
- Organisational errors in the hospital
However, such an error is only legally relevant if it is made with due diligence. could have been avoided and not merely a „fateful“ complication.
Errors in information: an often underestimated risk
In addition to classic treatment errors, medical information plays a central role.
Doctors must provide patients with comprehensive information before treatment, in particular about
- Risks and side effects
- Treatment alternatives
- Prospects of success
Only on this basis can effective consent be given. In the absence of such consent, liability may arise - even if the treatment was carried out in a technically correct manner.
Requirements for compensation
In order for a claim to be successfully enforced, three points must be proven:
- Damage
A health impairment or financial disadvantage must have occurred. - Causality
The fault must have been the cause of the damage. - Illegality
There is an interference with health or breach of contractual obligations. - Fault
The doctor must have failed to exercise due care.
In practice, causality is often the most difficult point and in most cases can only be clarified by an (expensive) expert opinion. It is a real „game changer“ if you as a patient have legal expenses insurance, as this then also covers the expert fees.
Who is liable - doctor or hospital?
Depending on the situation, different liability opponents can be considered:
- Attending physician (personal liability)
- Hospital operator (contractual liability)
- other health professions
There are often several opposing parties. The correct legal categorisation is crucial for success.
Burden of proof in medical malpractice law
In principle, the patient in his role as plaintiff must prove that there was a fault and that this caused the damage.
However, there are important exceptions:
- in the event of gross malpractice
- in the event of inadequate documentation
- in the event of disclosure errors
In such cases, the burden of proof may shift in favour of the patient.
What claims are patients entitled to?
If the claim is successful, the following claims in particular may be considered:
- Compensation for pain and suffering
- Reimbursement of treatment costs
- Loss of earnings
- Maintenance costs
- Compensation for future damages
As a rule, these claims are enforced in court under civil law.
How to enforce your claims
Medical malpractice cases are legally and medically complex. It is often necessary to obtain expert opinions.
Those affected basically have several options:
- out-of-court settlement
- Arbitration centres
- Judicial enforcement
Court proceedings are often lengthy and cost-intensive, which is why legal expenses insurance or a litigation financier, for example, and above all a sound legal assessment in advance are crucial.
Conclusion: Seek legal advice at an early stage
Whether a liability-relevant error actually exists can usually only be clarified by a careful legal and medical examination.
If you suspect that a medical error has occurred, you should Don't waste any time and seek legal support at an early stage.
Get non-binding advice now
Do you suspect a medical error or would you like to have your claims checked?
I support you in the legal assessment and consistent enforcement of your claims.
Lawyer David Zellinger