Any intervention in a person’s physical integrity is unlawful without valid consent – and consent is only valid if the patient has been adequately informed beforehand. Without that information, the doctor can be liable even if the treatment was lege artis – in line with the accepted rules of medical science – and free of errors. The patient must be informed about the nature and scope of the procedure, its typical risks and the alternatives; the less urgent the procedure, the more detailed the information must be. In these cases, the burden of proof lies with the doctor. The doctor must prove that the patient was properly informed and, where the doctor relies on it, hypothetical consent – the argument that the patient would have agreed anyway. That is why failure to properly inform the patient is often the more viable route when a treatment error is difficult to prove.
The operation went smoothly from a medical point of view, and the procedure followed all the accepted rules of medical practice – and yet harm remains, because a risk materialised that no one had ever mentioned. This is where a separate, often overlooked ground for liability comes in: failure to inform. It is the most common situation in which a doctor is liable even without any treatment error. This page explains calmly and without jargon when inadequate information from a doctor gives rise to claims, and what matters in Vienna.
Why informing the patient matters in law
Any intervention in a person’s physical integrity is unlawful to begin with – even one that makes medical sense. It only becomes lawful through the patient’s valid consent. And that consent is only valid if the patient was adequately informed beforehand. If you do not know what you are agreeing to, you cannot validly consent.
If the patient was not properly informed, the consent is invalid and the procedure remains unlawful – even if everything was medically correct. So the core issue is not a technical mistake by the doctor but a breach of the patient’s right of self-determination: the decision about their own body was taken out of their hands.
Liability even without a treatment error
This is the crucial point, and it surprises many people: there can be liability even though the treatment was lege artis and free of errors. If a typical risk associated with the procedure materialises and the patient was not informed about it, the treating doctor or hospital is liable – specifically for the consequences of that undisclosed risk.
An example: an operation is performed flawlessly but leaves nerve damage, a known complication that is rare but typical. If no one informed the patient of this risk, the patient could not take it into account when deciding – they might have decided against the procedure or chosen an alternative. That is exactly why failure to inform is often the more viable route when a treatment error in the narrower sense is difficult to prove.
How fully must the patient be informed?
Informing the patient does not mean a signed form; it means a conversation the patient can understand. The less urgent the procedure and the more serious the possible consequences, the more detailed it must be. In particular, the patient must be informed about:
- the nature and scope of the procedure and its prospects of success,
- typical risks – including rare ones, if they are characteristic of the procedure and serious,
- alternative treatments, with their respective chances and risks,
- the urgency: for a purely elective procedure (such as cosmetic surgery), the information must be almost complete; for a life-saving emergency procedure, the requirements may be lower.
A standard form handed to the patient does not replace the conversation. It can be an indication, but on its own it does not prove that the patient received adequate information tailored to their individual case.
Burden of proof: the doctor must prove the patient was informed
Here, the burden of proof works differently than for a treatment error. While the patient generally has to prove a treatment error, the opposite applies to informing the patient: the doctor must prove that the patient was properly informed – both in contract and in tort. If the doctor cannot do so, any uncertainty counts against them. Careful documentation of the consultation in which the patient was informed is therefore in the interest of the treating doctor or hospital; if there is none, this works in the patient’s favour.
Hypothetical consent
The treating doctor or hospital still has one counter-argument: they can claim that the patient would have consented to the procedure even if fully informed (known as hypothetical consent). But here, too, the burden is reversed: the doctor must prove this objection. The patient only has to show that it is plausible that, if properly informed, they would have faced a genuine dilemma about whether to consent – in other words, that they might have decided differently.
What you can do
- Request the records: Ask for your complete medical records, including the information and consent forms. You have a right to inspect them and to receive a copy.
- Write down what you remember: Note down promptly what was said about the procedure in the consultation, who was present and how much time you had before the procedure.
- Watch the deadlines: Claims for damages are generally subject to a three-year limitation period running from knowledge of the damage and of the person who caused it. If you wait too long, you risk losing the claim.
- Get initial guidance: An early legal assessment shows whether there may have been a failure to inform and which steps make sense.
Costs and duration – an honest assessment
In disputes about whether a patient was properly informed, the patient has an evidential advantage – the burden lies with the doctor. Even so, the outcome is not a foregone conclusion. Whether the information was sufficient, and whether the risk that materialised was one the patient should have been told about, is often a question for the report by a court-appointed medical expert. Such proceedings involve costs and can take a long time; as a rule, the party that loses on the merits also pays the other side’s costs. Legal expenses insurance may step in – we check this at the outset. There is no guarantee of success; we start with a sober assessment, not a promise.
A case from our practice in the media
A case reported in the daily newspaper ‘Heute’ shows how contentious the question of what a patient was told before treatment can be:
‘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 listen, request the treatment records and the information and consent documents, and check whether you were informed as required and whether a risk materialised that you should have been told about. We make sure that limitation periods do not expire, and we represent you in dealings with the hospital and the insurer – out of court and in court. If an out-of-court route is the better option, we will tell you so just as clearly as we will tell you if your prospects of success are weak.
Teamanwälte – Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Arrange an initial consultation about your case.
More on the wider topic: Medical liability & treatment errors (overview) · related: Treatment errors · Pain and suffering.
Note: This text is for general information only and is not legal advice on any individual case. How a specific case of failure to inform is assessed depends on the circumstances, on how the pre-procedure consultation was documented and, where applicable, on a report by a court-appointed medical expert. We give no guarantee of success.