Once liability is established, § 1325 of the Austrian Civil Code (ABGB) provides for several items of loss that can be claimed together. These are medical treatment costs, loss of earnings and nursing and care costs. They also include increased needs and damages for pain and suffering. Where visible permanent harm remains, compensation for disfigurement (§ 1326 ABGB) can be claimed in addition. The amount is always assessed case by case on the basis of a medical expert report – with severe permanent harm, the total can run into six figures. You can protect your claims for future damage with an action for a declaratory judgment under § 228 of the Austrian Code of Civil Procedure (ZPO). You can pursue the claims out of court or, where necessary, through the courts.
Once it is established that a treatment error or a failure to properly inform the patient has caused harm, the next question arises: what exactly is compensated – and how much? This page explains calmly and without false promises which items of loss Austrian law allows you to claim as damages, what the amount depends on and how to pursue your claims in Vienna. Whether there was an error at all is covered on our overview page on medical liability & treatment errors.
What you can claim
The central legal basis is § 1325 ABGB. In the case of bodily injury, it provides for several items of loss that you can claim alongside each other:
- Medical treatment costs – the cost of treatment, therapy, medication and aids needed to deal with the consequences of the harm, including foreseeable future costs.
- Loss of earnings – income lost during recovery, and income lost through permanently reduced earning capacity or permanent incapacity for work. For self-employed people, loss of earnings also covers lost profits.
- Nursing and care costs – the ongoing cost of nursing and care, even where relatives provide the care (notional care costs).
- Increased needs – permanent additional costs caused by a lasting impairment, such as adapting your home to make it accessible, orthopaedic aids or extra mobility costs.
If a visible, permanent impairment remains that hinders the person’s career or personal prospects – such as a disfiguring scar – compensation for disfigurement may also be available under § 1326 ABGB.
Damages for pain and suffering under § 1325 ABGB compensate for physical pain and mental suffering, both already endured and foreseeable in the future. In many cases, they are the largest single item. We explain in detail how they are assessed by degree of pain and daily rates on our separate page on pain and suffering.
How the amount is determined
A reliable figure is never available off the shelf. The amount is always determined case by case – according to the nature and severity of the injury, the specific permanent consequences, and the age and occupational situation of the person affected. It is almost always based on a medical expert report that establishes the extent and permanence of the harm. Only on that basis can the individual items be quantified.
The possible amounts therefore vary widely. Where the consequences are minor and temporary, the amounts often remain modest. With severe permanent harm – a lasting need for care, permanent loss of earnings, serious long-term consequences – the total claims for pain and suffering, loss of earnings, care and increased needs can together run into six figures. This should be understood as a range, not as the amount to expect in your particular case.
Protecting claims for future damage
Some consequences only become apparent years later or cannot yet be quantified. To stop claims for such future damage from becoming time-barred, you can bring an action for a declaratory judgment under § 228 ZPO. The court then declares that the treating doctor or hospital is liable for future damage that cannot yet be quantified – without every euro having to be fixed today. This is a key tool, especially where the course of an injury is severe or unclear. We explain which time limits apply on our page on limitation & late effects.
Pursuing your claims: out of court or in court
1. Claiming out of court
In many cases, you can first assert claims directly against the hospital, the treating doctor and their liability insurer. Well-prepared out-of-court negotiations – based on the complete medical records and a sound medical assessment – often lead to a result faster and with less strain than court proceedings lasting years.
2. Court action
If the out-of-court route does not succeed, you can still bring an action for full compensation. Medical liability cases usually involve large sums. As the value in dispute then exceeds €15,000, the court with jurisdiction in Vienna is generally the Vienna Regional Civil Court. The medical expert report is almost always at the heart of the proceedings.
Costs and duration – an honest assessment
Medical liability proceedings are demanding. They practically never proceed without a medical expert report; such reports cost money and take time, and proceedings often last for years. If you lose the case, you will generally also have to pay the other side’s costs – an honest assessment of the risks has to include this. Legal expenses insurance may cover the costs; we check this at the outset. There is no guarantee of success: the amount and your prospects of recovering it depend on what the expert report finds and how complete the documentation is.
Claims by surviving dependants: cases in the media
Relatives can also have claims of their own after a treatment error. The press has reported on such cases from our practice:
‘Maintenance after mother’s death’
A 44-year-old Viennese woman died after abdominal surgery in which a known complication was treated too late. We obtained a leading decision from the Higher Regional Court for her 13-year-old daughter: the court ruled that she was entitled to maintenance or care costs and reasonable compensation for grief.
View original clipping (PDF) →‘Viennese woman lay in hospital for 1 week with an aneurysm – dead!’
A 74-year-old Viennese woman died around a week after being admitted to hospital with a brain aneurysm that a CT scan had already detected. The family accuses the hospital of delaying the necessary investigations and treatment; the hospital says it treated her in line with accepted medical standards. We represent the widower, who is suing for €17,000 in compensation for grief.
Read the report on heute.at →‘Woman “cancer-free”, says doctor – 6 months later she was dead’
A 31-year-old Viennese woman with aggressive breast cancer was considered ‘cancer-free’ after an operation and died around six months later. Among other things, the family accuses the hospital of not adequately informing the young woman about the risks of taking part in a study; the hospital stresses that she had been fully informed and had signed to confirm this. We represent the deceased woman’s mother and are claiming €17,000 in compensation for grief.
Read the report on heute.at →How we help
We request the medical records, assess each item of loss realistically, quantify damages for pain and suffering, loss of earnings, care costs and other consequential costs, and protect your claims for future damage through an action for a declaratory judgment. We represent you in dealings with the hospital and the insurer – out of court and in court – and we will tell you just as clearly if a course of action has little prospect of success.
Teamanwälte – Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Arrange an initial consultation for an assessment of your claims.
Related: whether there was a treatment error or a failure to inform at all – and the limitation periods for your claims.
Note: This text is for general information only and does not constitute legal advice on any individual case. The amount of damages in medical liability cases depends on the circumstances, the documentation and the medical expert report. Any amounts mentioned are indicative figures or orders of magnitude, not a promise; we give no guarantee of success.