Facts
The complainant S. was injured during an operation at the Basel-Stadt cantonal hospital on January 24, 1997, and suffered brain damage. She receives a full disability pension from the Federal Disability Insurance and Occupational Pensions. In 1998, S. asked her employer to report the incident of January 24, 1997, as an accident. The employer forwarded the letter to Helsana Accident Insurance, where it was received on May 6, 1998. The parties did not pursue the matter further.
In 1999, S. sued the Canton of Basel-Stadt for damages for loss of earnings, pension damage, care and attendance costs, household damage, and pre-trial legal fees, as well as compensation for non-pecuniary damage. The proceedings were initially limited to the question of the defendant's fundamental liability, which was affirmed by the Federal Supreme Court in a judgment of November 23, 2004. In 2005, the federal court proceedings were continued and settled with a settlement agreement, under which the liable party undertook to pay S. an amount of CHF 3,000,000.
In 2007, S. applied for benefits for accidents with Helsana, which rejected the application. The appeal against this decision was dismissed. S. lodged a complaint with the Social Insurance Court of the Canton of Zurich, which dismissed the complaint. S. filed a complaint in public law matters with the Federal Supreme Court.
Considerations
The Federal Supreme Court had to examine whether the complainant could claim benefits from compulsory accident insurance for the consequences of the intervention on January 24, 1997. Helsana had denied its obligation to provide benefits, arguing that the complainant had waived her claim to benefits and, furthermore, had disposed of the accident insurer's claim for recourse through the settlement with the liable party.
The Federal Supreme Court concluded that the complainant had received full compensation for the damage through the settlement with the liable party…