Providing patients with insufficient medical information may impede their ability to give informed consent to proposed medical treatments and thus may trigger the tort liability of physicians or healthcare institutions. However, a March 2017 Supreme Court decision has reduced the scope of the medical information that must be provided to patients.

Facts

The overweight plaintiff suffered a disc prolapse. She was treated with a targeted nerve root blockade which failed to reduce her pain. Following this, the plaintiff received further medication treatment. A medical specialist attested that the patient had been suffering ongoing severe pain which was resistant to treatment in respect of intense conservative treatment. The specialist recommended that the patient undergo a decompression surgery, which was performed in the defendant's hospital by a surgeon. The plaintiff was determined to undergo surgery and had asked for a quick surgery date.

The surgery did not have the desired success. The plaintiff claimed compensation for pain and suffering, as well as the costs for a domestic aid.

Both lower-instance courts dismissed the claim.

Decision

The Supreme Court(1) upheld these decisions.

The basis for liability in relation to the provision of insufficient medical information by a physician or hospital owner is primarily the patient's right to self-determined consent to a medical intervention. The patient must truly consent to the treatment. A precondition to receiving a patient's consent is ensuring that the physician provides sufficient medical information. While the patient's education is not an end in itself, he or she must be provided with all relevant circumstances and information in order to reach a decision (eg, regarding providing consent to a surgery).

If several equivalent methods of treatment – in the sense that they provide a real choice – are available, but have different risks and chances of success, the patient must be informed of the available diagnostic or therapeutic alternatives and the pros and cons must be deliberated with the patient. It is unnecessary to educate patients on circumstances already known to them, as they will already be aware to which treatment they consent. Further, physicians need not educate a patient if they can assume, based on the history and experience of the patient, that he or she already has the necessary knowledge regarding his or her condition, the methods of treatment and any consequences.

The lower-instance courts correctly applied these legal principles. Because of the plaintiff's therapy-resistant pain, conservative therapies had failed. Consequently, the patient had firmly requested that the surgeon perform the operation as soon as possible following her nerve root blockade and medication treatment. On this basis, the plaintiff had no legitimate alternative in respect of continuing the conservative therapy, the more so since such treatment required significant weight reduction. Therefore, there was no obligation to educate her on the pros and cons – in particular, the chances of success of the two possible treatment methods.

Even in the case of an infringement of the duty to provide patients with medical education, the physician will not be considered liable where the patient would have consented even if proper information on the risks had been provided. However, in such cases, the burden of proof is with the defendant.

In the case at hand, the lower-instance courts established that the plaintiff would have consented to undergo the surgery even if she had been informed (once again explicitly) of the possibility of continuing the conservative treatment. In its consideration of the evidence, the first-instance court established that the plaintiff wanted to relieve her pain quickly and was determined to undergo surgery because of her significant suffering and severe pain over three months. Neither the conservative therapy nor the nerve root blockade led to recovery. Thus, the plaintiff wanted to relieve her pain as quickly as possible via surgery.

The appellate court did not deviate from the factual basis in accepting the first-instance court's establishment of facts with regard to the sufficient medical education (ie, the ex ante assessment, the medical specialist's recommendation of the microsurgery operation and the necessity of the patient's significant weight reduction in respect of the conservative therapy). The decisions were therefore in line with the Supreme Court's jurisprudence.

Comment

Although the Supreme Court in this particular case accepted an obviously brief medical explanation by the surgeon on the proposed treatment only (and not available alternatives) because the patient had already received prior education on the alternative treatment, the decision must not be understood as a carte blanche for providing insufficient medical information to patients. As the Supreme Court stressed, in general physicians must provide information not only on the proposed treatment, but also on adequate alternative treatments. Only if the physician can be sure that the patient is aware of the pros and cons of the available options can they limit the information that they provide to one specific treatment.

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For further information on this topic please contact Rainer Herzig at Preslmayr Attorneys at Law by telephone (+43 1 533 16 95) or email (herzig@preslmayr.at). The Preslmayr Attorneys at Law website can be accessed at www.preslmayr.at.

Endnotes

(1) Decision of March 28 2017 (8 Ob 27/17d).