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When doctors make mistakes

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Treatment errors by doctors can have grave consequences for those affected. But what can you do to protect your rights? Lic. iur. Bernhard Bischofberger, legal expert at AXA-ARAG, explains. 

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    Bernhard Bischofberger

    Bernhard Bischofberger is a legal expert and specialized in the area of patient and liability law. Here, he provides helpful tips about the legal rights you can enforce after treatment errors by doctors.

A treatment error can have tragic consequences for those affected. What rights do you have as a patient? 

Doctors are obligated to carry out treatment carefully and “lege artis”, i.e. according to the current state of medical knowledge and established science. However, this only requires a careful approach. Treatment success is not owed. Every medical intervention is associated with health risks. For this reason, patients must be informed prior to any procedure about the material and known risks, the type and method of treatment, as well as the behavioral and precautionary measures taken, so that they can give their consent. If they are not informed, then the medical procedure is deemed to be unlawful and criminal charges can be brought against the doctors. Not every unsuccessful procedure or complication is a treatment error. It is only possible to take legal action if it is proven that the doctor has breached their duty of care.

What steps should those affected take in such a case?

As a first step, the medical situation must be assessed based on the patient records and a second medical opinion from a medical specialist from the same medical field or an assessment of an independent and neutral party. For this, we recommend the Swiss Organization for Patient Protection SPO or the FMH assessment office for FMH doctors. If a patient has the necessary insurance coverage, their legal protection insurance will cover the costs of the clarifications and any expert opinions. AXA-ARAG also has a network of specialized physicians for assessments.

What claims can you make if your doctor has breached their duty of care?

If a breach of the duty of care can be proven, then patients can claim compensation for damages and satisfaction. The patient must provide evidence of the damages caused by the breach, which were not reimbursed by insurance. These include additional treatment and nursing costs, care costs, household costs, and loss of income.

Where can I claim damages?

All doctors in Switzerland (with the exception of public health officers) are legally obligated to take out sufficient professional liability insurance. Since January 1, 2022, victims of doctor errors can claim damages by submitting evidence of the breach of the duty of care directly to the professional liability insurance of the doctor concerned. 

What are the chances that you as a patient can enforce your claim?

Unfortunately, the chances of legally enforcing claims are often relatively low. In accordance with applicable law, it is the task of the patient, their legal protection insurance, and/or their attorney to prove a breach of the duty of care and the associated damage. However, it is often difficult to present proof so that a breach of the duty of care by a physician can only be sufficiently proven in rare cases. Nevertheless, time and again there are cases that can be settled through out-of-court arrangements and financial compensation in favor of the patient.

Many of those affected do not even pursue such cases further, probably because of a lack of financial resources, and because it takes a lot of perseverance when they do not have legal protection insurance that relieves them of this burden.

Bernhard Bischofberger, legal expert and specialized in the area of patient and liability law

Why is it so difficult to claim damages due to a treatment error?

Doctors have a treatment privilege. In other words, they can decide which treatment is the most suitable under the given circumstances according to the recognized rules of scientific and technical standards. In specific individual cases, there is a large gray area when it comes to whether a doctor has breached their duty of care. In addition, the medical files that could prove any such breach are located in hospitals, thus with the counterparty and the treatment is often insufficiently documented in the patient’s files. For this reason, you must rely on second opinions and the assessments of specialist doctors.

Am I entitled to ask for my patient file?

As a mandated party, doctors are obligated to be accountable to patients regarding their activity within the scope of the patient relationship. In addition, they must hand over the available medical files at any time and free of charge on request. However, doctors are allowed to make their own copies for reasons of proof. Upon request, doctors must also hand over X-ray images that have been made and paid for.

What costs should patients expect?

The medical opinion of a specialized doctor and legal assessment of an attorney is usually indispensable for clarifying the medical and legal situation. And the costs incurred for these clarifications can run up to over several thousand francs. At the same time, the chances of success are usually low because of an unclear body of evidence. Precisely for this reason, legal protection insurance with coverage for patient legal cases is advantageous in such cases, since it bears the costs of medical clarifications and – if the chances of winning are intact – the costs of legal representation vis-a-vis the doctor or hospital. 

The costs and expenses paid in advance are only reimbursed if the doctor is indeed held liable for the case. However, most cases of doctor liability are settled out of court and without any express acknowledgment of liability. Each party then bears their own costs. If patients do not have any legal protection insurance, they must thus pay their share of the clarification costs and attorney fees themselves. Many of those affected therefore do not even pursue such cases further, probably because of a lack of financial resources, and because it takes a lot of perseverance when they do not have legal protection insurance to relieve them of this burden.

Especially because careful clarification of the medical situation is very important for processing what has happened.

Bernhard Bischofberger, legal expert and specialized in the area of patient and liability law

How can legal protection insurance help in seemingly hopeless cases?

Through targeted intervention in individual cases, we can nevertheless achieve financial compensation for patients in many cases. Whether a case has a chance is evident only after medical and legal clarifications have been made. Many patients are thankful when we take over the case for them. Especially because careful clarification of the medical situation is very important for processing what has happened. Talking with us or the Swiss Organization for Patient Protection SPO can also help. In addition, it gives affected patients an initial opportunity to consider their rights and chances of success. It helps many patients to know that they have done everything they could. We will help you as far as possible.

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