Facts
The case concerns a Swiss surgeon, Prof. Dr. med. [X.] , who performed a spinal surgery on December 9, 2003, in which the patient [A.] died. The criminal proceedings against the appellant for negligent homicide dragged on for 12.5 years until the Federal Court finally discontinued the proceedings.
The appellant, an experienced spinal surgeon, performed the operation using an X-ray image intensifier. This resulted in an injury to the vena cava, which led to the patient's death. The lower court saw a breach of the duty of care in the fact that the appellant had not familiarized himself sufficiently with the functioning of the X-ray device and had operated it incorrectly, which led to the Kirschner wire penetrating too deeply and injuring the vena cava.
The Federal Court concluded that the long duration of the proceedings of 12.5 years, the exceeding of the statute of limitations by almost double, as well as the significant burden on the appellant's professional reputation, require the discontinuation of the proceedings as the only appropriate sanction. The lower court had exceeded its discretion in not considering the appellant's exceptional burden.
Considerations
The Federal Court concluded that the lower court had rightly assumed a breach of the duty of care by the appellant. He had not familiarized himself sufficiently with the functioning of the X-ray device and had operated it incorrectly, which led to the Kirschner wire penetrating too deeply and injuring the vena cava. The victim's death could have been avoided with due care.
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