Facts

Parties and procedural history:

The complainant (patient) suffered a slipped disc in October 2006 and was initially treated conservatively with lidocaine. After giving birth to her child, she underwent spinal surgery at Hospital [B.] (respondent) on 19 February 2007. Due to persistent pain, further procedures followed on 2 August 2007 and 7 August 2007, 14 December 2007 and 19 December 2007. The patient claimed that the operation on 14 December 2007 had been performed incorrectly, resulting in neuropathic pain and significant impairments. She sought damages of CHF 31,000.-- subject to subsequent claims.

Following an unsuccessful conciliation attempt, the patient filed a claim with the St. Gallen District Court on 16 September 2016. The District Court dismissed the claim on 5 November 2020. The patient’s appeal against this decision was also dismissed by the St. Gallen Cantonal Court on 9 March 2023. The patient then filed a civil appeal with the Federal Supreme Court.

Key points of contention:

  • Whether the hospital provided faulty medical treatment;
  • Evidence and burden of proof, in particular regarding the preservation of X-rays and the classification of the expert report by Prof. Dr. med. [C.] as an expert determination under Art. 189 CPC;
  • Breach of the hospital’s documentation obligations;
  • Court-ordered expert evidence of its own motion.

Considerations

Admissibility of the appeal:

The Federal Supreme Court first examined the admissibility of the civil appeal under Art. 72 para. 2 lit. b FSCA. Since the subject matter of the dispute concerns claims for damages and compensation for pain and suffering due to faulty treatment in a public hospital and is directly related to civil law, the appeal is admissible. The requirements for taking the case were met, in particular the appeal was sufficiently substantiated and addressed the reasoning of the cantonal court’s judgment.

Assessment of evidence and burden of proof:

The complainant argued that the hospital had breached its duty of care, in particular by incorrectly performing the operation on 14 December 2007. She requested a reversal of the burden of proof on the grounds that the hospital had not preserved the X-rays. The Federal Supreme Court, however, confirmed the view of the lower courts that the complainant had to prove the breach of the duty of care with the standard of proof of full conviction. A breach of documentation obligations does not automatically lead to a reversal of the burden of proof or a lowering of the standard of proof. The lower courts correctly noted that the complainant had not submitted a motion for the taking of court-ordered expert evidence. On the contrary, she had opposed such an expert report and refused to give her consent. Therefore, the taking of expert evidence of its own motion had not been justified.

Classification of the expert report by Prof. Dr. med. [C.] :

The complainant argued that the expert report by Prof. Dr. med. [C.] should be classified as an expert determination under Art. 189 CPC, since the parties had jointly commissioned it and shared the costs equally. The Federal Supreme Court clarified that an expert determination within the meaning of Art. 189 CPC only exists if the parties have expressly expressed their intention to recognise the expert’s findings as binding. The complainant did not demonstrate such an intention. The lower courts even found that the complainant had admitted that no agreement on the binding nature of the expert report had been concluded. Therefore, the expert report is merely a party submission that cannot be considered as evidence. The complainant was unable to show that the lower courts had…