19 - Case 16: Doctor's non-disclosure of a foetal disease

Summary

Case

Bridget was pregnant. She was under the treatment of a doctor who did not inform her that her foetus had a genetic anomaly, which was likely to cause brain damage. Her child was born mentally disabled. If Bridget had known about the anomaly she would have preferred to have undergone a (legal) abortion. Can Bridget sue the doctor for damages for non-economic loss, because he deprived her of the chance to decide whether or not to have the child?

Discussions

Austria

Operative rules

Damages in respect of economic loss (additional maintenance costs), as well as in respect of non-economic loss (shock) could be awarded here. However, Bridget will not be compensated for non-economic harm resulting from the mere loss of autonomy.

Descriptive formants

Under Austrian law it is unclear whether there is a personal right to family planning the infringement of which gives rise to a claim for damages in tort. As far as the rights to self-determination and free will are concerned, claims in tort for compensation are only granted where there is intentional infringement.

In the present case, however, there is a contractual relationship between Bridget and the doctor. The contract of medical treatment means that there is a duty on the doctor to inform the patient of any health risks (to either the mother or the foetus); this is, of course, true with respect to genetic anomalies and risks derived therefrom. Failure to inform, therefore, is a breach of contract.