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Mag. Patrycja Gamsjäger, LL.M.
Attorney at law in Vienna

Decision of the Austrian Supreme Court (OGH), 27 November 2017, 7 Ob 105/17t

The background of the case:
The plaintiff (34) was the brother of a patient (36) at the trauma surgery department in an Austrian hospital. On 17 April 2010 the patient was admitted to undergo a surgical procedure in order to stitch up the tendon rupture in his left knee.

After having been discharged the patient began to experience pain in his left leg, which was swollen. During the checkup in the hospital, on 12 May 2010, he showed the doctor his leg and pointed out that it caused pain. Due to this fact the doctor in the hospital was obliged to diagnose the danger of thrombosis and to have an ultrasonic scan. He failed to do so and the patient died from a lung embolism caused by thrombosis in his left leg.

Proceedings against the hospital and the decision of the Austrian Supreme Court:

The brother (plaintiff) of the dead patient lodged a civil action against the hospital seeking non- pecuniary damages for his mourning /shock caused by the loss of his beloved brother (patient). The court in the first instance established that the relation between the brothers was very familiar and intense: they called each other several times a day, the saw each other almost every day and they spent a lot of time together. Due to the early divorce of their the parents, the deceased brother took over the father’s role and was the plaintiff‘s best friend. The deceased brother also gave the plaintiff and the mother (who lived with the plaintiff) financial support.

The plaintiff himself didn’t have any contract governing medical treatment with the hospital (he wasn’t a patient, in fact only his deceased brother had bee). However, the fact is also that he suffered enormously because of the death of his beloved brother and therefore claimed immaterial damages from the hospital on the grounds of a contractual relationship.

The Austrian Supreme Court dismissed the claim.

It found that the hospital had acted recklessly, not observing the objective duty of care in breach the leges artis and established the causality between the omission to act and the brother’s death. However the Austrian Supreme Court also pointed out that it is important to examine the relation between the brothers from an objective point of view. In further conclusion, the Austrian Supreme Court stated that usually there is not such an intense relationship between brothers of age 34 and 36. There might be, of course, some individual cases, however, it is important to focus on an objective point of view and the general situation in the relations between brothers (and sisters). In the opinion of the Austrian Supreme Court usually the family members of the above mentioned age don’t have close familiar relations.

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