Once it is established that the doctor or hospital is liable, damages for pain and suffering under § 1325 of the Austrian Civil Code (ABGB) compensate for the physical and mental pain caused by the error – both the pain already suffered and foreseeable future pain. There is no official table. The amount depends on the periods of pain – slight, moderate or severe – established in the medical expert report, and on the overall picture. A proven treatment error or failure to inform is always required. Damages for pain and suffering often come with other items of loss (medical treatment costs, loss of earnings, compensation for disfigurement).
After a treatment error, the question ‘Was that a mistake?’ is sooner or later joined by a question about money: How much in damages for pain and suffering am I entitled to? This page explains calmly and honestly what damages for pain and suffering are awarded for in Austria and how they are assessed – and why reliable figures are only possible once your individual case has been examined. It is one of the in-depth pages that go with our overview Medical liability & treatment errors.
What damages for pain and suffering cover (§ 1325 ABGB)
Once liability in principle has been established, damages for pain and suffering under § 1325 ABGB compensate for the pain caused by the treatment error. This expressly covers not only physical pain but also mental suffering – for example psychological strain, anxiety or reactive depression following the procedure. The award covers both pain already suffered and foreseeable future pain. Damages for pain and suffering are a single lump-sum award: they are meant to compensate for the entire course of the pain, not just for one moment.
No official table – the amount depends on the expert report and the periods of pain
Contrary to what many people expect, Austria has no statutory or official table for damages for pain and suffering. What matters is an overall assessment of the specific case: the duration, intensity and type of pain and its effects on the life of the person concerned. The basis is usually a report by a court-appointed medical expert. It establishes the periods of pain – that is, how many days of slight, moderate or severe pain are to be taken into account. The courts calculate damages for pain and suffering from these periods.
Daily rates as a rough guide
In practice, the courts work with daily rates that depend on the degree of pain. The following amounts are rough orders of magnitude – they have no official basis, vary from court to court and are no substitute for an assessment of your individual case:
| Degree of pain | Approximate daily rate (indicative) |
|---|---|
| slight pain | around €110–160 per day |
| moderate pain | around €220–280 per day |
| severe pain | around €330–420 per day |
These daily rates are rough indications and come with no guarantee. The actual amount depends on the periods of pain established in the expert report, on the overall picture and on the court with jurisdiction.
Psychological effects are compensated too
Treatment errors do not only leave physical marks. If you suffer from anxiety disorders, sleep disorders, a post-traumatic stress reaction or depression that needs treatment after a failed procedure, you can receive damages for pain and suffering for this as well. The condition is that these psychological effects are linked to the error and have been proven, usually by an expert report. This psychological component carries particular weight where the course is serious, where impairments are permanent or where quality of life has been lost.
Prerequisite: a proven treatment error or failure to inform
Damages for pain and suffering are not awarded for every unfortunate outcome – only where there is liability. The prerequisite is therefore a proven treatment error (the treatment was not ‘lege artis’, i.e. not in line with the accepted rules of medical science) or a failure to inform. Failing to inform the patient properly can also give rise to liability, even if the treatment itself was medically correct. The amount only comes into play once the error, the damage and causation have been established. On our page Medical liability & treatment errors, we explain in detail how these requirements are examined and who has to prove what.
Damages for pain and suffering are not everything – other items of loss
Besides damages for pain and suffering, the law provides for further claims: medical treatment costs, loss of earnings, care costs and increased needs. Where permanent effects are disfiguring, there is also compensation for disfigurement. In serious cases, the claims as a whole can go well beyond the damages for pain and suffering alone. A separate page explains how the overall amount of damages is made up. Damages for pain and suffering are only one item – although often the one that matters most emotionally.
Costs and duration – an honest assessment
Putting a figure on damages for pain and suffering stands or falls on the expert report. Such reports cost money and take time, and it is not unusual for medical liability proceedings to last several years. If you lose the case, you generally also bear the other side’s costs. Legal expenses insurance may cover this – we check that at the outset. Nobody can responsibly guarantee a specific amount of damages for pain and suffering, because the amount only follows from the periods of pain that have been established.
Damages for pain and suffering: cases in the media
The press has reported on cases in which we claimed damages for pain and suffering after alleged treatment errors:
‘Viennese man inhales dental crowns – stuck in his lung for 1.5 years’
Despite persistent symptoms, two inhaled dental crowns went undetected in the lung of a 56-year-old Viennese man for around a year and a half, until a hospital found the cause and operated. We represented the man and claimed €37,000 in damages for pain and suffering.
View original clipping (PDF) →‘GP brushes off critically ill patient – found liable!’
A 33-year-old Viennese man in severe pain went to see his GP several times – it took an emergency operation to treat his ruptured appendix. We represented the patient; the court awarded him €7,500 in compensation.
Read the report on krone.at →How we help
We request the medical records, assess the evidence, clarify whether the requirements for liability are met and estimate the realistic range of damages for pain and suffering – without exaggerated promises. We make sure your claims do not become time-barred and that late effects are covered, and we represent you in dealings with the hospital and the insurer, both out of court and in court.
Teamanwälte – Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at. Arrange an initial consultation about your case.
Related topics: the limitation period for your claims, and damages for pain and suffering after a road traffic accident (same legal basis, § 1325 ABGB).
Note: This text provides general information only and does not constitute legal advice on any individual case. The amount of damages for pain and suffering depends on the circumstances, the documentation and the medical expert report. The daily rates given are non-binding indicative figures. We give no guarantee of success or of any particular amount.