Civil Liability of Physicians for Infringement of the Personal Interests of Relatives

Facts

The mother (second plaintiff) and the daughter (first plaintiff) filed a claim for damages and moral reparation against a pediatrician (defendant) following the serious harm suffered by the daughter during her medical treatment in 1979. The Federal Tribunal partially upheld the appeal of the plaintiffs and remanded the case to the previous jurisdiction for a new decision.

Considerations

The Federal Tribunal considers that close relatives of an injured person may claim moral reparation under Art. 49 CO when the damaging event has affected them in their personal relationships. This case law also applies to contractual liability.

The physician has a contractual obligation to adequately inform the patient, particularly about the risks associated with the treatment. This obligation also applies to diagnoses and advice given by telephone. In this case, the Federal Tribunal considers that the physician failed to fulfill this obligation by not sufficiently informing the mother about the risks of dehydration threatening…