Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 20393/92

by M.D.

against Austria

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 23 July 1992 by

M.D. against Austria and registered on 29 July 1992 under file No.

20393/92;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the Commission's decision of 31 August 1994 to communicate the

application;

- the observations submitted by the respondent Government on

8 November 1994 and the observations in reply submitted by the

applicant on 7 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1950 and living in

Salzburg. She is represented by Mr. W. L. Weh, a lawyer practising in

Bregenz.

The facts of the present case are as follows.

On 1 August 1991 the Salzburg Regional Court (Landesgericht)

dismissed a civil action brought by the applicant against a surgeon and

the Land of Salzburg. She alleged that the first defendant, a surgeon

of the State hospital in Salzburg, had committed a professional error

when operating upon her in March 1982. The applicant contended that

she had only agreed to an operation to remove a cyst. The defendant

surgeon, however, went beyond this objective and effected a laparotomy,

i.e. he opened the abdominal wall and cut the ends of her fallopian

tubes, thereby causing sterilisation of the applicant. Furthermore,

in October of the same year the defendant surgeon carried out a

hydropertubation bursting her fallopian tubes.

According to the findings of the Regional Court the applicant

married in 1970 and was being treated for sterility since 1977. On the

basis of her medical history, a medical expert opinion and the

applicant's statements, the court considered that the defendant surgeon

had not violated the rules of the medical profession as the extended

operation which he carried out on 19 March 1982 was necessary because

in the course of the operation he diagnosed the existence of a

thrombosis, i.e. a bleeding in the abdominal cavity which indicated the

possibility of an extra-uterine pregnancy. The applicant's life had

consequently been in danger, thereby necessitating the opening up of

the abdominal wall. As there had been urgency, from a medical point

of view it had not been possible to interrupt the operation in order

to obtain the applicant's consent for the further intervention. Having

opened the abdominal cavity, the defendant surgeon discovered a

deformation of the applicant's fallopian tubes which he removed,

although this particular intervention was not necessary to save the

applicant's life. However the court considered that the intervention

was medically justified as it improved the prospects of the applicant

becoming pregnant which would otherwise have been practically

impossible. Given that the applicant had been seeking to overcome her

sterility for five years, the court considered it could in these

circumstances be assumed that the applicant would have agreed to the

extended operation if she had been asked beforehand.

A declaration which patients are usually made to sign before an

operation contains a standard formula according to which the patient

consents to the operation as well as to extensions which are decided

by the surgeon in the course of the intervention because they appear

to be necessary from the medical point of view. In the applicant's

case no such declaration was found in the hospital files. According

to the Regional Court's finding in this respect the applicant did not

remember whether or not she signed such a declaration before the

operation. She alleged that she had signed one already in 1979

expressly limiting her consent to the concrete object of the

intervention without accepting possible extensions.

In addition to finding that the defendant surgeon did not act

unlawfully (rechtswidrig) because it could be assumed that the

applicant would, in the circumstances, have agreed to the extended

operation, the court underlined that in any event the operation had not

caused the applicant any moral or material damage. In particular, it

could not be found that it was the cause of her sterility, rather it

increased her chances of becoming pregnant.

Moreover, the hydropertubation carried out in October 1982 was,

from a medical point of view, unobjectionable. The court also noted

that the applicant's criticism of the official medical expert opinion,

which she based on a private expert opinion, had been considered to be

unfounded by another medical expert, who was heard in conjunction with

criminal proceedings which the applicant had brought against the

defendant surgeon.

The applicant's appeal against the Regional Court's judgment was

rejected by the Court of Appeal (Oberlandesgericht) in Linz on

4 December 1991.

The Court of Appeal likewise considered that the defendant

surgeon had carried out the operation in accordance with the rules of

the medical profession, i.e. correctly, and that in the particular

circumstances it had to be assumed that the applicant would have agreed

to the operation had she been fully informed about its extent and

possible consequences.

The applicant then lodged an extraordinary appeal on points of

law (ausserordentliche Revision) which was rejected by the Supreme

Court (Oberster Gerichtshof) on 8 April 1992 on the ground that the

requirements for an extraordinary appeal, as set out in Section 502

para. 1 of the Code on Civil Proceedings (ZPO), were not fulfilled.

Relevant Domestic Law

According to constant case-law of the Austrian courts a surgeon

is obliged to provide a patient before a surgical intervention with

comprehensive information on the potential risks and consequences of

such an intervention. According to the circumstances there may however

be justified restrictions to the physician's duty to inform the

patient.

In addition Section 8 para. 3 of the Federal Hospitals Act as

well as Section 12 para. 4 of the Salzburg Hospital Regulations

implementing the Federal Act provide explicitly that special curative

treatments including surgical operations may be administered to

patients only with their consent. Such consent to special curative

treatments including surgical operations is not required where the

treatment is so urgently necessary that the delay entailed in obtaining

the consent of the patient would endanger the patient's life or would

entail the danger of grave damage to the patient's health.

To treat a person without that person's consent may also

constitute a criminal offence under Section 110 of the Austrian Penal

Code (Strafgesetzbuch).

COMPLAINTS

The applicant considers that her rights to respect for private

life and to found a family, as guaranteed by Articles 8 and 12 of the

Convention, are violated. She considers that in order to safeguard the

patient's rights, the State had the positive obligation to ensure that

in State hospitals patients were properly informed beforehand by

surgeons about the possible risks and consequences of each operation,

and should establish a note about the prior informative talk which

should be signed by the patient and kept in the respective clinical

records as proof in case a dispute arose after the operation. In her

case the declaration which she had signed and allegedly expressly

limited to the elimination of a cyst had disappeared, depriving her of

any means of proving her case.

In these circumstances the applicant submits that the domestic

courts wrongly disregarded her own statements that she would never have

accepted the operation in question. Instead the courts even assumed

that she would have accepted the operation and thereby her rights under

Article 8 of the Convention were again violated.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 23 July 1992 and registered on

29 July 1992.

On 31 August 1994 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

8 November 1994. The applicant replied on 7 April 1995, after an

extension of the time-limit.

THE LAW

1. The applicant mainly argues that her right under Article 8

(Art. 8) of the Convention to respect for her private life has been

violated because she was allegedly not properly informed by the

responsible surgeon of a public hospital about the possible

consequences of an operation and because the surgeon who operated on

her went beyond the initially limited scope of the operation which was

the elimination of a cyst while the surgeon also removed part of her

fallopian tubes without her consent and although from a medical point

of view there was no cogent necessity to effect this removal.

The Commission notes that the object of Article 8 (Art. 8) is

essentially that of protecting the individual against arbitrary

interference by the public authorities. This provision does not merely

compel the State to abstain from such interference: in addition to

this primarily negative undertaking, there may be positive obligations

inherent in an effective respect for private or family life. These

obligations may involve the adoption of measures designed to secure

respect for private life even in the sphere of contractual relations

(cf. X. and Y. v. the Netherlands judgment of 26 March 1985, Series A

no. 91, p. 11, para. 23).

In this respect the Commission notes that under the Austrian

Penal Code medical doctors are criminally liable for treating patients

without their consent. Furthermore Austrian civil law contains

provisions regulating the civil liability of hospitals vis-à-vis their

patients ex contractu as well as of individual hospital personnel such

as surgeons vis-à-vis hospital patients ex delictu. Medical

malpractice or neglect of the obligation to inform a patient on the

potential risks and consequences of a surgical intervention can thus

give rise to claims for compensation.

Having regard to the wide margin of appreciation the Contracting

States enjoy (cf. Abdulaziz, Cabales and Balkandali judgment of

28 May 1985, Series A no. 94, p. 33 para. 67), the Commission concludes

that in the circumstances of the present case the protection afforded

to the applicant by Austrian law is not insufficient such as to amount

to a lack of respect for private life provided for by Article 8

(Art. 8).

It follows that to this extent there is no appearance of a

violation of Article 8 (Art. 8) of the Convention and this part of the

application has to be rejected in accordance with Article 27 para. 2

(Art. 8-2) of the Convention as being manifestly ill-founded.

2. Having regard to the nature of the complaint raised the

Commission has furthermore examined the application under Article 6

(Art. 6) of the Convention which, so far as relevant, provides as

follows:

"1. In the determination of his civil rights and obligations

..., everyone is entitled to a fair ... hearing ..."

In this respect it is first recalled that according to Article

19 (Art. 19) of the Convention the Commission's task is to ensure the

observance of the obligations undertaken by the parties to the

Convention. It is therefore not competent to examine whether or not

errors of law or fact have been committed by a domestic court, except

where it considers that such errors might have involved a possible

violation of any of the rights and freedoms set out in the Convention.

Such violation might under particular circumstances result from an

arbitrary assessment by the domestic courts of the evidence available

or offered to them.

The applicant complains that the Austrian courts wrongly assumed

that she would have consented to the extended operation had she been

informed about it previously. She alleges that she had signed a

declaration and expressly limited her consent to the concrete objects

of a particular surgical intervention.

The Government argue that in the circumstances it had been

justified that the surgeon went beyond the original aim of the

operation because the removal of the ends of the fallopian tubes

appeared medically necessary and saved the applicant from a second

operation.

The Commission notes that the first instance court based its

decision, inter alia, on medical expert evidence. Furthermore the

court stated that the applicant did not remember whether or not

immediately before the operation in question she had signed a paper

restricting her consent expressly to the object of the surgical

intervention.

The Commission finds no indication that the applicant,

represented by counsel, could not properly argue her case or that the

proceedings were otherwise unfair. In the circumstances of the present

case it cannot be found that the applicant's action was arbitrarily

dismissed.

It follows that this part of the application has likewise to be

rejected in accordance with Article 27 para. 2 (Art. 27-2) of the

Convention as being manifestly ill-founded.

For these reasons, the Commission, unanimously,

DECLARES THE APPLICATION INADMISSIBLE

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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M.D. v. AUSTRIA

M.D. v. AUSTRIA

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