The University of Texas at Austin   School of Law

Main menu:

Case:
Austrian Supreme Court (OHG) - 1 Ob 91/99k; JBl 1999, 593
Date:
25 May 1999
Translated by:
Raymond Youngs, Senior Research Fellow at the Institute of Global Law
Copyright:
Professor Basil Markesinis

The first claimant is the mother and the second claimant the father of the third claimant, who was born on the 2nd January 1988. The third claimant was born severely disabled. His upper extremities on both sides are missing. He had two club feet. The claimants allege that his left leg is also shortened by half a thigh's length.

The second defendant was a specialist in gynaecology and obstetrics. He was a university professor and physician in charge at a University women's clinic. He had acted as an obstetrician for the first claimant on an earlier delivery. At her request he cared for her during her pregnancy with the third claimant at his private surgery, for which she had to pay a fee. The delivery was to take place in accordance with the first claimant's wishes in the University women's clinic in which the second defendant worked, financed by health insurance. The second defendant undertook nine complete gynaecological investigations of the first claimant at his private surgery and compiled for her the mother and child medical record. Besides this he undertook cytological and bacteriological secretion investigations and five complete urine analyses.

The second defendant is not an ultrasound specialist. He has no ultrasound equipment. He admittedly did not tell either the first or second claimants of this but agreed with the first claimant to have the ultrasound investigations carried out at outpatients at the University women's clinic. The second defendant referred patients for ultrasound investigations in principle to doctors who were concerned with investigations of this kind on a large scale. He accompanied the first claimant to the first ultrasound investigation and was present at it. The first claimant had not communicated to the second defendant any special wishes about what her care would include. No special questions were put to her on the occasion of the ultrasound investigations at the University women's clinic.

The third defendant is the board of the University women's clinic which the first claimant visited for the ultrasound investigations (and for the delivery). The first defendant is the legal personality in respect of this clinic.

If a patient visited the University women's clinic in 1987 in, for instance, the 10th week of her pregnancy, for an ultrasound investigation, she would be automatically booked again for the 25th, 26th or 27th week of her pregnancy. Any possible deformities were thereby to be established by a "deformity screening" which at that time was not yet undertaken routinely. The object of the routine ultrasound investigations in 1987 was to ascertain 1. whether there was a living child 2. that the size of the child in accordance with its biparietal diameter was in conformity with the length of the pregnancy and 3. the position of the placenta. An ultrasound screening involves on the other hand a search for special disturbances in development which can be connected with certain risk factors (such as higher age and previous history of the mother, or small amount of amniotic fluid). A special "deformity screening" takes place if there is a medical history and if within the framework of the routine ultrasound investigation a indicative condition (eg oedema of the neck) is observed.

In 1987, the University women's clinic which the first claimant visited already applied the techniques which are necessary to carry out "deformity screening" – not so called at that time – although the state of its development did not yet correspond to that at the present day. A "deformity screening" investigation differs in the way it is carried out from routine ultra-sound investigations by the fact that it is effected by specially trained and particularly experienced doctors. Routine ultrasound investigations on the other hand are undertaken by medical technical assistants and in fact mostly two independently of each other. The presence of a doctor is not necessary but, if need be, doctors who are training to be specialists are present.

The first ultrasound investigation was carried out on the first claimant on the 11th June 1987. On this investigation the second defendant was present. The first claimant was at this time 10 weeks pregnant. Further investigations followed on the 6th August 1987 (17th week of pregnancy), on the 17th September 1987 (23rd week of pregnancy) and on the 21st October 1987 (28th week of pregnancy). In all these investigations neither the fact that the extremities were missing nor the presence of club feet were diagnosed in respect of the third claimant. Apart from the ultrasound investigation, it was highly probable that there were no indications of the developmental anomaly of the third claimant. It is not possible to establish these kinds of defective development before the birth clinically ie by manual or visual investigation.

In the night of the 1st to the 2nd January 1988, the first claimant's waters broke. She presented herself at the University women's clinic and was investigated there by a doctor in the labour ward. The second defendant came to the first claimant at about 9 o'clock, investigated her and ruptured the amniotic sac completely, which caused the onset of labour. At 13.05 hours the first claimant gave birth to the third claimant.

The first claimant had hoped to give birth to a healthy child. She was conscious at the birth and noticed that the midwives and doctors became "pale". One of the midwives said: "Something dreadful has happened to us". The first claimant's first thought was that the child was dead. She asked the doctors and midwives what was wrong with the child but received no answer. The staff were obviously shocked. The claimant pulled herself up and was able to see the child. She had the feeling that "the world was falling apart".

Therapy for the absence of the upper extremities or two club feet in the uterus is still not possible today. The third claimant's deformities could not be cured at any time before his birth, even only partially.

The first and second claimants claimed S 149,615 and the first claimant claimed a further S 100,000. The claimants also asked for a finding that the defendants were liable a) to the first and second claimants for all their future expenditure due to the third claimant's disability and for other financial disadvantages arising from his disability and b) to the third claimant for all future expenditure which he has to make for coping with his life through his disability and for other financial disadvantages and suffering arising from his disability…

Before discussing in greater detail the problem which lies at the heart of these proceedings, this Senate considers it necessary to hold that it shares the misgivings of Koziol (which also influenced the decision (reference omitted)) about accepting the birth of a healthy but unwanted child as the cause of compensatable economic harm, in the light of the weighty arguments presented. It is however unnecessary to go into this any further, because the case to be assessed here – which is especially tragic from a human point of view – in which the extremely severe disability of a child in its mother's womb was not recognised and the parents had an especially severe burden imposed on them which drastically changed their lives, is not comparable with the problem of a mere failure of family planning. In such a case the derivation of claims to compensation from the fact that an abortion was not carried out cannot - as it was by the appeal court - simply be regarded as excluded. Even Koziol admits (reference omitted) it would at least be worth considering whether the coming into existence of family law relationships should by and large be assessed as disadvantageous if they represent quite exceptional burdens for the parents.

The German Bundesgerichtshof since its leading judgment in 1980 (BGHZ 76, 249) in constant case law awards to the parents of an unwanted child, born as a result of an unsuccessful sterilisation or a failed abortion, a claim to compensation against the responsible doctor for payment of the necessary child maintenance. The BGH requires a consistent approach in compensation law: the starting point for legal classification of these cases would be contract law…

According to § 97 para 1 line 2 second case of the [Austrian] Criminal Code, the termination of a pregnancy is not a crime if a serious risk exists that the child will be seriously harmed mentally or physically…

This Senate takes the view, following the widely prevalent opinion, that an abortion desired by a pregnant woman is not unlawful if the prerequisites of § 97 para 1 line 2 second case of the [Austrian] Criminal Code are present… Simply on the grounds of preservation of the unity of the legal order, an approach differentiating between the legal position in criminal law and in civil law cannot be allowed, having regard to the complex material. In so far as the criminal law provision referred to justifies the termination of a pregnancy, this must therefore also apply for assessing the consequences in civil law…

It is generally recognised that being burdened with a duty is positive harm. Consequently this – as Koziol explains (reference omitted) – cannot be denied even with a duty to maintain. Koziol correctly opposes the criticism by Picker (reference omitted) of the previously quoted German case law, who amongst other things takes the view that no difference can be made in liability law between the child and the expenditure on maintenance because otherwise the child would be understood as the cause of harm. He evidently bases the incorrectness of this proposition on the fact that it put cause and effect the wrong way round. The fact that the child's maintenance is to be designated as an obligation is not linked to a negative value judgement about the child. Pertinently, Koziol also explains that Picker's fears that the making by the parents of a claim for compensation for harm bring "the fact of the child not being wanted blatantly before its eyes" are unjustified. In fact it is, on the contrary, to be feared that the child will come to feel its lack of acceptance more if the parents had to bear the financial burdens in full.

The response of the German BGH to further criticism of its opinion in BGHZ 124, 128 that there was compensatable economic loss is that the heading "child as harm" was an unreasonable way of looking at the position and inappropriate from a legal point of view. The difference between the existence of the child and its indisputable value as a personality on the one hand, and the burden of maintenance arising for its parents on the other, did not signify an artificial division or a "dissection of the personal entirety of the child" (reference omitted). Instead, the burdening of the parents with the expenditure represented the reduction of wealth which characterises the supposition of harm. The fact that the economic burden is initially caused by the child's existence arose from a scientific relationship which taken by itself was value free. Besides, the concept of harm was neither according to statute nor according to compensation law practice negatively charged to such an extent that financial burdens due to the birth of a child could not be regarded as harm. In particular, assessing the special burden of maintenance resulting from a child's severe disability as harm in the relationship between the parents and the doctor did not, for instance, mean that a negative value judgement was being pronounced about the child and it was being degraded in its personality by connection with the concept of "harm". Even the BGH propounds the view – like Koziol – that granting compensation in cases like the present one was not only without negative effects for the child, but could even be useful to it because its parents' economic position would thereby be improved.

This Senate agrees with this view of the law for the case where, because of a mistake in advice by the doctor responsible, a birth of a disabled child occurs which would not have been desired if a correct explanation had been given. As already stated, Koziol (reference omitted) also holds the view that, for the case of a quite extraordinary burden, the coming into existence of a family law relationship could be assessed as disadvantageous. The question of whether the doctor on culpable breach of his duty of advice must, in the cases in which he ought to be found liable after comprehensive appraisal of the peculiarities of the individual case, provide compensation for the expenditure on maintenance as a whole does not present itself in this case, because the claim to be assessed here is only directed to the additional expenditure caused by the disability.

The problem area of compensation for one's own undesired existence ("wrongful life") has also occasioned numerous opinions in academic literature, especially in Germany (references omitted). The German case law denies a claim of this kind with convincing arguments. According to these arguments, it must be born in mind to start with that the doctor, if no method of averting serious harm to the child was available to him, did not cause the child's condition. No duty to prevent the birth because the child will be born with a severe disability can be derived from the legal order. It is not for the doctor to pass judgement on the value of human life as the highest ranking legal interest. The duty to preserve the life of the severely disabled ought also not to be made dependent on a judgement about the value of the preservable condition of that life. It is not an issue here of those borderline cases in which the question arises as to whether in spite of the complete hopelessness of improving a state of suffering, individual functions of life should still be maintained by artificial measures. Neither the enabling nor the non-prevention of life violates a protected legal interest. There can be no possibility of a generally binding judgement as to whether life with serious disabilities, as against the alternative of no life at all, represents harm in the legal sense or a more favourable situation.

In this respect, tortious liability of the doctor as well as liability based on contractual duty must be denied. The defective conduct of the doctor is a breach of his contractual duties to the parents. Breaches of duty to the child could only arise on the existence of contractual protective effect in his favour (reference omitted). Koziol, who rejects in principle a claim to compensation by the child, considers subsidiary protection for the child for the case where the persons under a duty to maintain are not in a position to settle the compensation. Apart from the fact that such a case is not being decided here, the lack of causation on the doctor's part is in any case inconsistent with a claim to compensation for additional expenditure as a result of the disability. The child would not have been born healthy even if the doctor had behaved correctly (references omitted).

In Germany the justified termination of a mother's pregnancy is only expressly approved in her own interest whilst this is not expressed in the [Austrian] Criminal Code in this clear form. Regardless of this fact, however, the child's claim to compensation on the basis of contractual liability should also be rejected under Austrian law. The child's own claims are only sustainable insofar as its integrity interest has been culpably harmed by human conduct. In cases like the present one, the boundaries are reached within which a legal claim regime is possible. A human being must in principle accept his life as it is formed by nature and he has no claim to its prevention or destruction by others. However, in so far as the mother is allowed the possibility of having an abortion by the legal order, the child cannot derive from this a claim against her not to exist. If this issue were to be decided differently as against the doctor, then logically the parents would also be liable to their child, over and above their duty to maintain it, if they have brought it into existence or let it live in spite of a serious genetic defect. The advocates of a claim for compensation by the child itself cannot in the end put forward anything really valid against this argument of the BGH, which is in every way convincing. Even if abortion is to be regarded as lawful under certain conditions, neither the foetus nor a child already born has a right, according to the current view, to be killed (reference omitted). It is true that it appears at first sight to be correct that the child should be competent for the purposes of a claim as the actual injured party and the victim (reference omitted). It is also correct that, on a superficial view of the matter, a contradiction could be seen in the fact that, on a claim by the parents, the existence of the child and the coming into existence of the duty to maintain are assessed separately from each other (reference omitted). Yet these approaches are – as Zimmermann (loc. cit.) pertinently demonstrates – in the end not tenable in legal theory. They ignore the fact that the failure of the doctor to give an explanation simply did not have the "harm" as its consequence. The result would be that the doctor would be liable just as if he had harmed an embryo which was healthy at the start. But this should be rejected. The recognition of the interest of the parents in reparation is not an acceptable criterion for supporting an important conclusion for the benefit of the child.

For the duty of the responsible doctor to compensate, it does not matter how the burden caused is divided between the married couple in the individual case (references omitted; see also Koziol loc. cit. who, insofar as he advocates compensation, assumes it as self-evidently for both parents). The Austrian Supreme Court has repeatedly stated (references omitted) that the father is entitled to sue in his own name for the harm which he has suffered, on the basis of his statutory duty of maintenance, because of the costs of cure for his minor child, without any need for a transfer of the victim's compensation claims. A shifting of the harm was at times accepted as the legal basis of the father's entitlement to claim (reference omitted) because the harm which is normally suffered by the victim must exceptionally be borne financially by a third party, namely the father, on the basis of a current duty to maintain. This Senate recognises that the present case is characterised by the fact that – as already further explained above – the child itself does not have a claim to compensation to harm on the basis of its own unwanted life. But it adheres to this view of the law because in any case, in spite of this circumstance, the additional burdens caused by the child's disability (and thus harm which has in itself occurred in the person of the child) have to be born by both parents on the basis of the statutory provision (§ 140 para 1 of the ABGB). The same conclusion is reached if the protective area of the contract with the doctor for medical treatment – as in German academic opinion and case law – is extended to the father, as he has, like the mother, an interest of his own, known to the doctor, in being informed about the wellbeing of or harm to the embryo.

According to the first claimant's assertions which remain so far unproved, the failure to give an explanation about the serious disability of the child expected by her was the cause of the shock at the birth, in that she learnt of the severe disability of the child in the exceptional situation of a mother giving birth. If the explanation had been in a "normal" situation, she would, she claims, have been spared the shock.

Even if the contract for medical treatment which is concluded with a pregnant woman primarily includes the gynaecological care and control of the expectant mother and the surveillance of the foetus, there still exists, in particular in the case of an ultra-sound scan, a contractual duty to explain to the mother about recognisable harm to the growing child. But the duty to explain cannot only be limited to the purpose of offering the mother assistance in deciding for or against an abortion. Even if the doctor who is consulted within the framework of caring for a pregnant woman is not obliged to provide psychiatric services, he is still required to make the patient's welfare his business in a comprehensive sense. This includes explaining about the malformation of a child at a substantially more favourable point in time than the birth. In contrast to the view of the appeal court, the mother's arguments about the basis of her claim to damages for pain and suffering cannot therefore be dismissed at the outset as inconclusive.

It is admittedly correct that there are no damages for pain and suffering in respect of emotional pain which is not based on an injury to one's own body. But as the Austrian Supreme Court has already stated on several occasions, physical injury is to be understood as including every interference with bodily and mental health or integrity. Disturbances to the functions of the brain and nerves, as for example sleeplessness and all kinds of conditions of excitement and agitation are to be designated as physical injury. A mere psychological interference which only consists in discomfort or feelings of aversion does not of itself suffice to be seen as injury to the body or equated to an injury. Massive effects in the psychological sphere represent physical injury when they are associated with physical symptoms which should be regarded as illness. A massive psychological interference of this kind is to be assumed if treatment of the psychological disturbance is required from a medical perspective. That is above all the case if one cannot reckon on the consequences fading away of themselves or there is a fear that without medical treatment a lasting disturbance of health will remain (references omitted).