CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 17 janvier 1996

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          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)