The Supreme Court (OGH) recently had to deal with the timeliness of medical information prior to a gastric bypass operation and held in the decision 3 Ob 179/23d that the medical information provided to a patient late in the afternoon of the presentation of her serious and non-urgent gastric bypass operation was not sufficient.
Facts of the case
The plaintiff, who was obese at the time, underwent laparoscopic gastric bypass surgery. It should be emphasized that the plaintiff knew that the procedure would fundamentally change her digestion due to the information she had received during the months of extensive interdisciplinary clarification between surgery, psychosomatic medicine and the metabolic outpatient clinic. In principle, the plaintiff was also prepared to accept the associated disadvantages such as flatulence, diarrhea, constipation and vomiting. However, the plaintiff received comprehensive information later in the afternoon on the day of the operation. A doctor went through the information sheet, which contained all the essential information about possible complications and subsequent complaints, in detail. However, the plaintiff argued in the proceedings that she could no longer reasonably be expected to postpone or even refrain from the operation as a result of the short notice and that the information was therefore not provided in good time.
Legal assessment
The Court of Appeal did not correct the legal opinion of the court of first instance that the plaintiff could no longer reasonably be expected to postpone or even cancel the operation at the time the information was provided and that the information was therefore not provided in good time. According to the Supreme Court (OGH), the assessment of the Court of Appeal does not need to be corrected, which is why the extraordinary appeal of the losing hospital was dismissed. The plaintiff therefore prevailed with her claim for damages due to the failure to provide information in good time.
Significance for practice/conclusions
In exceptional cases, it may very well be permissible to inform the patient only shortly before the procedure. The case in question could not be compared with a "conventional" hip operation, for example, due to the severity of the operation performed here or the consequences (or impending consequences) associated with it, in which medical information may only be sufficient in individual cases at the time of presentation (e.g. 7 Ob 64/11d).
In principle, medical information must be provided in good time so that patients have a reasonable period of time to consider the matter; the duration of this period always depends on the circumstances of the individual case. In addition to the urgency of the medical treatment, the seriousness of the planned intervention is also decisive for the timeliness of the information.
