A physician's obligation to provide patients with sufficient information to decide upon a certain medical treatment is crucial. There are numerous decisions dealing with the physician's and the hospital's risk of being held liable for damages in such cases.
Primarily, it has to be noted that there is no general rule or even template for fulfilling the prerequisite of adequate information. It may differ from patient to patient. Generally, however, each patient needs to be educated
▪ in good time, and
▪ sufficiently contentwise;
to be able to agree or disagree on a medical treatment with the necessary knowledge of the scope and consequences.
The Austrian Supreme Court acknowledges that there cannot be a valid approval by the patient if the cosultation was erroneous, incomplete or generally missing. Thus, physicians or hospitals are liable for all damages resulting out of insufficient information.
Further, the information needs to be provided personally and directly to the patient. Documents may only be of additional help.
The scope of input may vary depending on the patient's own medical expertise and experience. In addition, there is a differentiation between emergency surgery (lower requirements) and cosmetic surgery or diagnostic operations (very high requirements).
Patients must be made aware of the specific and typical risks as well as the chances of success of the medical treatment. In cases where the patient may choose between various and medically equivalent treatments, each with different risks and chances of success, the patient must be provided with enough information to be able to do so. Latest Supreme Court Decision (OGH 8 Ob 27/17d) In March 2017 the Austrian Supreme Court was again confronted with a case of a physician's liability for medical malpractice because of insufficient information on alternative treatments. In the respective case, the patient suffered from back pain and the conservative therapy was not effective. The patient suffered from so called "therapy-resistant pains", which only operative surgery can aid. As a result, the patient agreed to surgery on the guidance provided by the physician; who however only addressed this treatment, but not the conservative therapy anymore. After the surgery the patient was in pain and required home help, thus she claimed for compensation for these damages on the grounds of missing information on alternatives.
In this case, the Court found that the patient in fact did not have the possibility to choose anymore as surgery was the only option left at that stage. Therefore, it was of no relevance if the physician informed the patient about conservative treatments or not.
Nonetheless, the situation and liability always has to be evaluated on a case-by-case basis even though this decision is beneficial for physicians and hospitals.