A recent Supreme Court decision ruled that a patient may sue not only the hospital operator for medical malpractice, but also its liability insurer directly. This also applies if the liability insurance was taken out by the hospital operator voluntarily; without any legal obligation to do so.

In the case at hand, a claimant had brought a civil action against a hospital operator as first-defendant as well as its liability insurer, as second-defendant, for an error in the medical treatment of the claimant's hand. The first and second court instances dismissed the claim against the liability insurer arguing that the injured party does not have a direct claim against the hospital's liability insurer. The appellate court added that other than medical doctors, who are legally obliged to conclude professional liability insurance before practicing, the hospital operator could not be directly sued for lack of a liability insurance required by law.

The Supreme Court dismissed the 2nd instance decision by referring to the Federal Law to Strengthen Ambulant Public Healthcare (2010) which incorporated the obligation to include professional liability insurance in several healthcare laws. These provisions concerning mandatory liability insurance and the possibility to directly claim against the insurer are based on motor vehicle liability insurance. In the automotive sector, public vehicles are exempt from mandatory insurance, but if liability insurance is taken out voluntarily for such a vehicle, the injured party has a direct claim against the liability insurer. In view of this role model function in the motor insurance liability sector, it may be assumed that the legislator wanted to ensure that direct legal action against a liability insurer is possible not only in connection with medical doctors and "private" hospitals with mandatory liability insurance, but also as regards public hospitals with voluntary liability insurance (7 Ob 177/17 f).

Note: A patient who has a damage claim against a medical doctor does indeed have the possibility to bring an action against both, the medical doctor and the insurer, because the medical doctor has its one mandatory professional liability insurance. The insurer and the insured person are then jointly liable. In fact, this possibility for a direct claim makes it far easier for a patient to successfully push for compensation for damages suffered.