State Liability for Hospital Medical Activities

Facts

- X., an Italian engineer, was treated at the University Hospital Zurich in November 1982. This resulted in complications with internal bleeding that required several operations. - X. filed a claim against the Canton of Zurich for damages exceeding 3 million Swiss francs, alleging a violation of medical art by the treating physician Dr. Z. - The Canton of Zurich requested the dismissal of the claim, as there was no medical malpractice and at most only the privately practicing Professor Y. would be liable.

Considerations

1. The Federal Supreme Court initially found that the provision of medical care in public hospitals, insofar as it is carried out by physicians in an official capacity, is considered a sovereign and not a commercial activity. Accordingly, the liability of the Canton is governed by cantonal public law and not by federal civil law.

2. The cantonal Liability Act also covers the activities of physicians in public hospitals. The Canton of Zurich cannot argue that the Act only covers sovereign activities in the narrower sense, i.e., the exercise of state…