A treatment error occurs when a patient is not treated in line with the accepted rules of medical science (‘lege artis’). The standard is the degree of care expected of an average, conscientious specialist in the relevant field, as set out in § 1299 of the Austrian Civil Code (ABGB). Even minor negligence is enough. A poor outcome alone is not an error. As a rule, the patient must prove the error, the damage and causation – but case law eases this burden in important ways. The main ones are prima facie evidence where the probability is high, a reversal of the burden of proof once an error is established, and a presumption against the treating doctor or hospital where the documentation has gaps. Claims are subject to limitation: as a rule, they become time-barred three years after the patient learns of the damage and of the person who caused it.
A procedure does not go as you were told it would, a diagnosis comes too late, symptoms persist after an operation – and you are left asking whether this was medical malpractice. This page explains calmly and without jargon what counts as a treatment error under Austrian law, who has to prove what, and which first steps make sense. It is part of our Medical liability & treatment errors section.
What is a treatment error?
A treatment error occurs when the treatment falls short of what the current state of medical science required – in short, when the doctor did not act ‘lege artis’, that is, in line with the accepted rules of medical science. The standard is objective. Under § 1299 ABGB, the law expects the degree of care that an average, conscientious specialist in the relevant field would have exercised. So it does not matter whether the particular doctor was overstretched or inexperienced; the yardstick is the standard of the specialist field.
One point surprises many people: liability arises even from minor negligence. There does not have to be a gross, obvious error – an avoidable lapse in care over a detail can be enough, provided it caused damage.
A poor outcome is not in itself an error
Medicine works with probabilities, not guarantees. Even treatment carried out carefully and correctly can fail. If a risk materialises even though the treatment was lege artis, this does not give rise to liability. In practice, almost every case turns on exactly this point: whether there was an error – and whether that specific error caused the damage. An unwanted result alone is not proof.
Who has to prove what?
This is the crucial point, and also the one most often misunderstood. The basic rule is that the patient has to prove the treatment error – the doctor does not have to prove their innocence. Specifically, the patient bears the burden of proof that
- a treatment error occurred,
- damage occurred, and
- the damage was caused by that very error (causation).
However, case law eases this burden noticeably, because full scientific proof of what happens inside a human body is often impossible.
Prima facie evidence where the probability is high
For causation, prima facie evidence is usually enough: the patient only needs to show a high, predominant probability that the error caused the damage – proof bordering on certainty is not required.
Reversal of the burden of proof once an error is established
Case law goes further still once two things are established: the doctor made a treatment error for which they are at fault, and that error increased the risk of the damage that occurred to more than an insignificant degree. The burden of proof is then reversed: now the treating doctor or hospital must prove that the damage would very probably have occurred even without the error. This helps the patient considerably – but it requires the error itself to have been proven already.
Gaps in the documentation count against the doctor
Doctors and hospitals are required to keep records. If a record that should have been made is missing, the measure that was not documented is presumed not to have been carried out. This presumption is rebuttable, but it works against the treating doctor or hospital and gives the patient a real easing of the burden of proof. Incomplete medical records can make the decisive difference – which is why requesting the complete records is one of the first steps.
First steps
If you suspect a treatment error, you should act early and in a structured way:
- Request your medical records: You have the right to inspect your complete medical records. These documents are the basis of any review.
- Write down what happened: Note the sequence of events, your symptoms, and who said what and when – while your memory is still fresh.
- Get a legal assessment: Only the records can show whether there was a treatment error and what claims you have. An early review gives you a clear picture, preserves evidence and makes sure you meet every deadline.
- Keep an eye on deadlines: As a rule, claims become time-barred three years after you learn of the damage and of the person who caused it. If you hesitate, you risk losing your claims – for details, see our page on limitation periods.
Costs and duration – an honest assessment
Proceedings over treatment errors are demanding. Presenting the evidence is complex, and in practice these cases can almost never be pursued without a medical expert report. Such reports cost money and take time, and it is not unusual for proceedings to 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. And one thing does not change: there is no guarantee of success. The outcome depends to a large extent on what the expert report finds and how complete the documentation is. In serious cases with permanent consequences, the total claims can be substantial – but the starting point is a sober assessment, not a promise.
Treatment error cases in the media
The press has reported on several cases in which we represented people affected by alleged treatment errors. A selection:
‘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 →‘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) →How we help
We request the medical records, assess the evidence realistically, take steps so that your claims do not become time-barred, and 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. 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 about your case.
Related topics: liability for a failure to inform the patient properly, even where there was no treatment error; the amount of damages for pain and suffering; 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 assessment of a specific treatment error case depends on the circumstances, the documentation and the medical expert report. We give no guarantee of success.