In November 2016, the Austrian Supreme Court published a decision, showing a general tendency of doctors being held liable for medical malpractice because of deficiencies regarding the informed consent process. The process requires an explanation of the risks and possible complications of a treatment or procedure. The latter being the more frequent cause for rulings against physicians.
In this particular case, the plaintiff had a contraception-spiral inserted by her gynecologist. However, the gynecologist did not specifically explain the possibility that the spiral could move into the abdomen. Following the lege artis treatment, the spiral moved to the plaintiff's abdomen and grew together with the small intestine. The contraception-spiral had to be removed by surgery.
The Austrian Supreme Court acknowledged the argumentation of the Appeal Court, according to which the movement of the spiral is a typical treatment-risk. The doctor must inform the patient about the respective risks, regardless of the rate of occurrence. Additionally, the package insert of the contraception-spiral, which was not handed over to the patient, should be within the state of knowledge of a medical specialist. A decent and dutiful gynecologist would have informed the patient about the risk, as stated by the Austrian Supreme Court. (1 Ob 138/16z)