Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 18478/91

by Peter ANGERMAIER

against Austria

The European Commission of Human Rights sitting in private on 31

March 1993, the following members being present:

MM. J.A. FROWEIN, President of the First Chamber

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

Sir Basil HALL

Mr. C.L. ROZAKIS

Mrs. J. LIDDY

MM. M. PELLONPÄÄ

B. MARXER

Mrs. M.F. BUQUICCHIO, Secretary to the First 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 14 March 1991 by

Peter ANGERMAIER against Austria and registered on 9 July 1991 under

file No. 18478/91;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is an Austrian citizen, born in 1949. He is

represented by Mr. G. Stanonik, a lawyer practising in Salzburg.

The undisputed facts of the case as submitted by the parties may

be summarised as follows.

In July 1985 the applicant brought a civil action for damages

against Dr. B., a medical doctor, and a pharmaceutical company. He

alleged that in 1982 the doctor had treated him with a newly developed

medicine of the pharmaceutical company without having given him

adequate information about the possible side effects of the treatment.

He alleged that the high doses of the medicine which he had to take

caused him serious bodily harm, inter alia a paranoid schizophrenia

resulting in his complete unfitness to work.

After a hearing on 3 December 1987 the Linz Regional Court

(Landesgericht) decided to obtain an expert opinion on the question

whether there was a causal link between the applicant's present health

condition and the treatment complained of.

The applicant successfully challenged two experts appointed by

the Court but his challenge against a third expert, Professor P.,

appointed on 9 June 1988, was rejected on 28 June 1988. By letter of

20 July 1988 Professor P. invited the applicant to contact him on

5 August 1988 for an examination. As the applicant did not appear he

was again invited on 7 November 1988 to present himself on

26 November 1988. This letter was returned with the information that

the applicant was living in the Federal Republic of Germany.

In an expert opinion of 21 December 1988 Professor P. denied

a causal link between the applicant's present complaint and the

previous treatment given to him by Dr. B. At the applicant's request

Professor P. was ordered on 22 February 1989 to examine the applicant

and to supplement his expert opinion. On 6 May 1989 the applicant was

examined by the expert who for health reasons had cancelled an earlier

appointment fixed for 8 April 1989. On 16 June 1989 the supplemented

expert opinion was submitted and served on the parties on 23 June 1989.

The parties were requested to submit observations on the expert opinion

before 28 July 1989.

Following a request of 21 July 1989 the applicant was granted

an extension of the time-limit for his observations on the expert

opinion until 30 September 1989. A further request for an additional

extension until 30 November 1989 was rejected by the Regional Court on

2 October 1989. Following a hearing on 6 November 1989 at which the

expert explained his opinion orally, the Linz Regional Court

dismissed the action on 14 November 1989 on the ground that the

plaintiff had not shown the existence of a causal link between his

physical complaints and the medical treatment given to him in 1982.

On 10 January 1990 the applicant lodged an appeal. In the

course of the appeal proceedings, i.e. on 21 March 1990, he submitted

a private expert opinion dated 8 January 1990 according to which there

was, in view of opinions expressed in medical literature, likelihood

of a causal link between the treatment received in 1982 and the

following side-effects: fever of 40 to 41 degrees, thrombosis of leg

veins with subsequent pulmonary embolism and a liver disease

(Leberparenchymschaden).

The applicant's allegation that his clinical condition

(Krankheitsbild) had worsened after the treatment and that the

consequences of the treatment were catastrophic was however not

confirmed by the private medical expert who found that this could not

be asserted with sufficient certainty (hinreichende Sicherheit).

On 5 June 1990 the Court of Appeal (Oberlandesgericht) in Linz

dismissed the appeal as being unfounded. The appellate court

considered that the lower court's finding that there was no causal link

between the applicant's physical complaints and his previous medical

treatment was unobjectionable.

In accordance with Section 482 (2) of the Code on Civil

Procedure (Zivilprozessordnung-ZPO) the appellate court refused to

consider the private expert opinion as it could and should have been

submitted in first instance (Neuerungsverbot). The Court added that

even if the private expert opinion were not considered an inadmissible

new fact the applicant had failed to submit it together with the

reasons for his appeal.

The appellate court agreed with the applicant that a medical

doctor was liable for damage caused by a treatment even when the

treatment was carried out in conformity with the ordinary care required

by the medical profession but without adequate prior instruction of the

patient as to possible negative consequences. This principle, so the

court concluded, did not apply in the applicant's case however as he

had not established a causal link between the treatment and the alleged

damage.

Insofar as the applicant had complained that neither the parties

nor his aunt Dr. K. had been heard as witnesses, the Court of Appeal

stated that the hearing of these persons was irrelevant as according

to constant jurisprudence a medical expert opinion could not be put in

question by statements of witnesses named by the parties.

The Court of Appeal refused to admit an ordinary appeal on

grounds of law (ordentliche Revision).

The applicant lodged a special appeal on points of law

(außerordentliche Revision). He mainly argued that the defendant

doctor failed to inform him adequately about the treatment and its

possible effects. Consequently he was liable regardless of whether a

causal link could now be established between the deterioration of his

state of health and the treatment in question. The Supreme Court

(Oberster Gerichtshof) dismissed the application on 30 August 1990 in

accordance with Section 502 para. 1 of the Code on Civil Proceedings

(ZPO) as being inadmissible stating that the appellate court's decision

was in line with the jurisprudence of the higher courts.

COMPLAINTS

The applicant complains that his request made in first instance

on 29 September 1989 to prolong the time-limit for his observations on

the official expert opinion was not granted. He submits that it is

very difficult to find an expert willing to give evidence against an

important pharmaceutical company. Therefore the fact that he was not

given enough time to prepare a number of questions to be put to the

official expert within the framework of a private expert opinion

constituted a violation of the principle of equality of arms.

He further complains that the trial court refused to hear the

parties as witnesses and a further witness, namely his aunt, Dr. K.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 14 March 1991 and registered

on 9 July 1991. On 13 January 1992 the Commission (First Chamber),

decided to communicate the application to the respondent Government for

observations on admissibility and merits.

The Government submitted their observations on 15 May 1992 and

the applicant replied on 28 August 1992.

THE LAW

The applicant complains of the dismissal of his civil action for

damages against a medical doctor and a pharmaceutical company. He

submits that he was denied a fair hearing as guaranteed by Article 6

para. 1 (Art. 6-1) of the Convention in that in first instance he was

not given adequate time to put in question the result of a medical

expert opinion or to produce a counter-opinion and that on appeal the

private expert opinion submitted by him was not considered because it

was not submitted together with the grounds of appeal. He also

complains that neither the parties nor the witness Dr. K. were invited

by the courts to give evidence.

The Government first argue that the applicant's special appeal

was an ineffective remedy offering no chance of success and that

consequently the final decision given by the domestic courts in the

applicant's case was that of the Court of Appeal of 5 June 1990, while

the application was lodged on 14 March 1991, that is not within six

months as required by Article 26 (Art. 26) of the Convention.

They also point out that the applicant did not complain before

the domestic higher courts of their refusal to grant him sufficient

time in first instance for the preparation of a private expert opinion.

The applicant replies in this respect that although the special

appeal on points of law was declared inadmissible it was, from his

point of view, not an ineffective remedy given the seriousness of the

arguments on which this appeal was grounded.

The Commission notes that the special appeal was mainly based on

the argument that the applicant had not been properly informed about

the possible risks of the treatment given to him by the defendant

doctor.

Even assuming that the special appeal was an effective remedy,

the application must be rejected for non-exhaustion of domestic

remedies, as the applicant has neither in his appeal nor in his special

appeal complained of the refusal of the first instance court to grant

him a second extension of the time limit for the submission of a

private expert opinion.

Furthermore, he has not in his special appeal complained that

Dr B. was not heard as a witness.

He can in these circumstances not be considered to have exhausted

the remedies available to him under Austrian Law.

It follows that the application has under all circumstances to

be rejected in accordance with Article 26 and Article 27 para. 3

(Art. 26, 27-3) of the Convention.

For these reasons the Commission, unanimously

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M. F. BUQUICCHIO) (J.A. FROWEIN)

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ANGERMAIER v. AUSTRIA

ANGERMAIER v. AUSTRIA

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