The Austrian Supreme Court has ruled that if a gynaecologist does not specifically point out to a patient, that he/she only considers parts of the yearly routine cancer check-up his/her area of responsibility, then he/she is liable for diagnostic mistakes by the servicing pathologist.
For years the claimant/patient let her gynaecologist perform cancer smear tests. The patient was never explicitly told by the gynaecologist who actually examined the respective tests. After six years the defendant informed the patient of a “positive“ result following her most recent test. Cervical cancer at a well-advanced stage was detected. If the correct procedure had been carried out in previous years, early indications of cancer would have been found. Consequently, as this was not done, extensive surgery needed to be performed. This resulted in lasting physical and psychological impairments.
The previous court of law instance rejected the claim for compensation for pain and suffering against the gynaecologist. It found that only the pathologist was liable for the incorrect diagnosis.
The Austrian Supreme Court did not confirm this ruling and awarded compensation for pain and suffering in the amount of EUR 35.000 to the patient. The court ruled, that the patient, who had her doctor perform regular cancer check-ups, can presume that the gynaecologist takes responsibility for all sub-procedures. If a doctor does not specifically point out that he/she’d is subcontracting another specialist, then it must be assumed that liability for the pathologist as vicarious agent lies with the doctor. (1 Ob 161/16g)