An 82-year-old man had his wrong leg amputated during surgery performed by a 43-year-old surgeon in Austria on May 18, 2021. The mistake allegedly was the result of the hospital staff marking the wrong leg before surgery. Instead of removing the man’s left leg, the surgeon removed his right leg. The man then had to have his left leg amputated above the knee following the wrongful removal of his right leg.

The hospital issued a statement that read, in part: “It was (Thursday) morning, in the course of the standard wound dressing change, that the tragic mistake, caused by human error, was discovered … A disastrous combination of circumstances led to the patient’s right leg being amputated instead of his left … We would also like to affirm that we will be doing everything to unravel the case, to investigate all internal processes and critically analyze them. Any necessary steps will immediately be taken.” The hospital noted that the man had medical problems with both legs before the wrongful amputation.

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On December 1, 2021, an Austrian court fined the surgeon 2,700 euros ($3,050), with half of the amount suspended, “for committing grossly negligent bodily harm.” The court stated that the surgeon “carried out an inadequate clarification with the existing medical records and the photo documentation before the operation for the planned amputation of the left thigh and thus marked the right leg for the surgical intervention.” The court also awarded the man’s widow $5,666 in damages. The man died from unrelated causes prior to the court date.

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Medical Malpractice In Austria

According to a June 2011 law review article: “To begin with, there are no juries in civil procedure, so in first instance, it is always a single judge alone who hears the case and decides both about liability and remedies. Furthermore, experts are typically appointed by the court, even though the parties may bring in further expert evidence. There is nothing equivalent to discovery in Austrian civil procedure. Finally, Austria follows the loser-pays principle, which means that whatever side wins the case is eligible to claim costs from the opponent in proportion to the percentage of success. This includes lawyers’ fees, even though these are limited by statutory amounts linked to the value in dispute. So if the patient loses her case, she has to pay not only her own dues, but also court fees and the doctor’s and/or hospital’s attorneys’ fees. If she succeeds only in half, the corresponding success of the defendant(s) effectively offsets the respective claims for reimbursement of costs.”

“Austrian doctors are not only answerable to courts of law, but also to their competent local disciplinary commission, which acts under the supervision of the disciplinary council of the Austrian Medical Chamber. However, section 136 of the Austrian ARZTEGESETZ (ARZTEG) [ACT ON THE MEDICAL PROFESSION] only rather vaguely defines disciplinary offences as any conduct which may adversely affect the reputation of Austrian doctors, or any violation of professional duties. Details have to be identified by the disciplinary commissions themselves. Apart from temporary injunctions, they can issue anything from written reprimands to permanent bans on practicing medicine. Decisions of the disciplinary commissions remain confidential, so their impact on liability issues cannot be properly assessed.”

“As required by federal law, all provinces have installed so-called Patientenanwaltschaften [patient advocacies], which offer, inter alia, free advice and support to patients who believe they have been wronged in the course of medical treatment at a hospital. These independent bodies, which are part of the executive branch and staffed by the provincial government, are not competent to represent patients before courts, but their services may prevent cases from going there inasmuch as they offer guidance to patients about their options, negotiate on their behalf with liability insurers, appoint experts to assess the facts, and so on. The patient advocacies serve an important buffer function, filtering out unsubstantiated cases, while at the same time, at least offering an official place to be heard to these complainants.”

“All provinces with the exception of Salzburgl21 have established so-called Schiedsstellen or Schlichtungsstellen (conciliation panels) in order to provide a forum for both patients and doctors to resolve disputes arising from or in the course of the treatment. They can therefore not only be called upon by patients, but also by doctors. These panels are typically organized at the seat of the respective medical chamber. The number of members varies and typically includes at least one doctor and one judge each.”

“In order to succeed, a victim must prove that she has incurred some damage which is deemed compensable. The latter is not universally true for pure economic loss, which outside a contractual relationship tends to be indemnified only if caused intentionally. Not only does the victim have to prove a loss, she also needs to quantify it in monetary terms. However, a provision of the Act on Civil Procedure comes to her rescue, allowing the judge to assess the loss according to her discretion if it cannot be proved in every detail or if such proof were unreasonably difficult.”

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