Mag. Patrycja Gamsjäger, LL.M.
Attorney at law in Vienna.
The patient felt no (physical) pain and there was no way that the broken piece would move somehow in the patient’s body. Nevertheless, the patient was terrified and he couldn’t stop thinking about the foreign material in his body. „What if it moves?“, he asked himself. The patient suffered from a mental stress.
The Austrian Supreme Court decided that the patient (claimant) was entitled to compensation of EUR 5.000,– for immaterial damage. According to the Austrian Supreme Court the psychological pain is eligible for compensation if they result from the bodily injury. The bodily harm doesn’t need to be visible. Neither it is important whether the patient feels the pain or not.
Thus in the present case the emotional pain (more than a mere agitation or bother) is a consequence of the bodily injury (surgery).