Legal assistance with Anwaltfinden.at
- Editorial staff Anwaltfinden.at
The legal basis for the relationship between a patient and his doctor or hospital is created by the treatment contract. A treatment contract can be concluded verbally, in writing or implicitly and does not have to follow a predetermined form.
However, a treatment contract basically gives rise to various rights and obligations for doctor and patient, which can lead to claims for damages and/or compensation for pain and suffering for the patient in the event of malpractice.
This article is intended to provide important facts about the treatment contract and answer the basic questions on the topic. These are, for example: What does a treatment contract include?
What rights and obligations arise for doctor and patient from the treatment contract? What is a medical malpractice? How can you claim damages or compensation for pain and suffering resulting from malpractice?
- The legal basis for a treatment of a patient by a doctor is the treatment contract
- A treatment contract does not have to be concluded in a predetermined form and can be concluded in writing, orally or implicitly.
- As a rule, a treatment contract is a service contract in which a attending physician owes no success for the treatment result.
- A violation of the rights and obligations arising from a treatment contract can lead to claims for damages and, if necessary, claims for compensation for pain and suffering for a patient if they are due to malpractice that results in damage to health.
- In the case of inpatient treatment in a hospital, the treatment contract is usually concluded with the hospital operator and not with the attending physician. In this case, a doctor then acts as a vicarious agent of the hospital operator.
- In the case of malpractice, the patient must prove that his damage to health is due to a specific treatment and that a attending physician is responsible for this.
The treatment contract in its variants
The treatment contract comes in different variants, which also include different contractual partners. In practice, the simple treatment contract or the hospital admission contract is primarily used, but there are also various mixed treatment forms of these treatment contracts.
The simple treatment contract for outpatient treatment
The treatment contract for outpatient treatment is a contract for treatment between a freely practicing physician and the patient. This creates a direct and personal duty for the doctor to treat. In this case, the main contractual obligation for the patient is the payment of the medical service.
However, when the patient is referred to another doctor, in most cases a new treatment contract is created.
This always applies if the doctor who treats the referred patient provides an independent or at least partially independent medical service. In this case, however, a referring doctor is liable for fault if he has made a wrong decision in the selection of the doctor. However, he is not responsible for the treatment of the new doctor and cannot be held liable for his medical errors.
Another case is when a doctor consults another doctor as a consultant in the course of treatment and also provides him with patient documents or examination material (e.g. medical laboratory).
This does not create a new treatment contract between patient and consultant physician, the original treating physician thus remains the sole contractual partner of the patient.
However, a different legal relationship arises between the two doctors, in which the consulting physician becomes the vicarious agent (§1313a ABGB vicarious agent) of the attending physician.
However, the protective function of this contract also usually works for the patient, so that he can also assert claims for damages from this contract, in the event that this second doctor is to prove culpable misconduct due to a medical error.
The hospital admission contract for inpatient treatment
In the case of inpatient treatment in a public hospital, a treatment contract is usually concluded between the hospital and the patient. This so-called hospital admission contract does not necessarily have to be concluded in writing, but can also be verbal or implied.
In principle, a non-profit hospital is obliged according to its institutional facilities to take in every person in need.
Only the state of health of the person in need is decisive to make medical treatment or surgery mandatory. Any person who requires immediate medical treatment is considered irrefutable and may not be denied medical treatment.
With the treatment contract as a hospital admission contract, the hospital undertakes to carry out professional treatment by doctors and helpful staff.
However, the patient does not conclude separate treatment contracts with the actors, so there are no separate treatment contracts such as a treatment contract doctor, treatment contract physiotherapy, treatment contract midwife or treatment contract occupational therapy. Therefore, the medical experts act as vicarious agents of the hospital operator.
It follows that the hospital operator is also liable to its patients for medical errors or malpractice by the entire staff. However, this only applies to the contractual obligations, for tortious acts a patient can also prosecute individual employees of the hospital.
Combined forms of treatment contract
Furthermore, there are some mixed forms with regard to the treatment contract, which are particularly often concluded in the following situations:
- Hospitals usually have a special class section in the hospital, for which separate treatment contracts are concluded.
- In addition, even in private hospitals, affiliated doctors conclude their own treatment contracts with patients.
Patients in the special class of a hospital are offered a higher standard of accommodation and food.
In addition to the hospital admission contract, a treatment contract physician private patient is concluded with the chief physician, which includes the personal treatment of the patient. In this case, a joint and also joint liability of the hospital and the doctor for the treatment of the patient occurs.
In the case of an attending doctor, he is then also liable for the staff made available to him by the hospital, as this is then to be regarded as a vicarious agent of the attending doctor.
The patient as a contractual partner of the treatment contract
The contracting parties to a treatment contract are both the doctor and/or the hospital, as well as the patient. However, a patient can be fully legally competent or even a minor as well as mentally ill. Mentally disabled or mentally ill patients are then under a trusteeship or, if necessary, also have a patient advocate.
The adult and legally competent patient
If a patient has reached the age of 18 and is in full possession of his mental powers, he is considered a patient with full legal capacity. Therefore, he can conclude his treatment contract himself and he gives his consent to medical treatment after the medical clarification himself.
The minor or mentally disabled patient
A minor patient needs the consent of his legal representative to conclude a treatment contract. This is usually a parent, but it can also be a guardian or trustee.
This legal representative then concludes the treatment contract for the minor patient. In addition, in the case of a mentally disabled patient, his trustee concludes the treatment contract, but in some cases he must obtain additional approval from a guardianship court.