Medical error: how to assert your rights
Two liability regimes depending on the caregiver's status
The applicable legal basis depends on the setting in which care was provided: a doctor in private practice is bound to their patient by an agency contract (art. 394 ff. CO), and their liability falls under the general rules of contractual liability and art. 41 CO. Treatment at a public hospital, on the other hand, generally falls under cantonal state liability law, whose rules and deadlines differ significantly from private law.
What needs to be proven
Asserting a medical error requires demonstrating a breach of the rules of medical practice (an error in diagnosis, treatment, or patient information), actual damage, and a causal link between that breach and the damage suffered. The mere occurrence of a known, statistically possible complication of a correctly performed treatment does not in itself constitute a medical error.
The central role of medical expert opinion
These disputes almost always rely on an independent medical expert opinion, intended to determine whether the care provided complied with the rules of medical practice in force at the time. The patient can request a court-ordered expert opinion or, depending on the canton, approach a cantonal conciliation body for medical matters before any court proceedings.
Deadlines to observe
Limitation periods and preliminary procedures (complaint, conciliation) vary significantly depending on whether the dispute falls under private law or the cantonal state liability law applicable to a public institution: it is essential to quickly check which regime applies to your situation so as not to miss a deadline.
Frequently asked questions
Are the rules the same for a private doctor and a public hospital?
No, a private doctor falls under the rules of agency and contractual liability under the CO, while a public hospital generally falls under cantonal state liability law, with rules and deadlines specific to each canton.
Is a known complication of a treatment automatically a medical error?
No, the occurrence of a statistically possible complication of a treatment correctly performed according to the rules of medical practice does not in itself constitute a medical error engaging the caregiver's liability.
How is a medical error proven?
Most often through an independent medical expert opinion, intended to determine whether the care provided complied with the rules of medical practice in force at the time, supplemented by the medical record and relevant witness testimony.