Facts
In 1956, the then 17-year-old Doris X. was admitted to a private psychiatric clinic due to mental disorders. During her stay, a love affair with intimate relations developed between her and the treating assistant physician Dr. Y. After her discharge from the clinic, the two went on a joint vacation, during which they continued to have sexual contact.
Doris X. and her father (co-plaintiff) subsequently sued the psychiatric clinic for damages and satisfaction pursuant to Art. 101 CO, as the physician's conduct constituted a breach of the clinic's contract. The clinic denied liability, arguing that the physician had not acted in the performance of his duties, but only on the occasion thereof.
The Court of Appeal of the Canton of Bern dismissed the claim, as the physician had committed the damaging acts not in the performance, but only on the occasion of his duties. The plaintiffs appealed against this judgment to the Federal Supreme Court.
Considerations
The Federal Supreme Court overturned the lower court's judgment and remanded the case for re-evaluation. It found that the physician had violated a contractual obligation of the clinic towards the patient through his conduct, even if his actions had been contrary to recognized medical principles. The decisive factor was that the physician had acted in the performance of his duties, as the medical treatment of the patient had continued beyond the stay at the clinic.
The Federal Supreme Court stated that the clinic was liable under Art. 101 CO for the…