AS TO THE ADMISSIBILITY OF
Application No. 18478/91
by Peter ANGERMAIER
against Austria
The European Commission of Human Rights sitting in private on 31
March 1993, the following members being present:
MM. J.A. FROWEIN, President of the First Chamber
F. ERMACORA
G. SPERDUTI
E. BUSUTTIL
Sir Basil HALL
Mr. C.L. ROZAKIS
Mrs. J. LIDDY
MM. M. PELLONPÄÄ
B. MARXER
Mrs. M.F. BUQUICCHIO, Secretary to the First Chamber,
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 14 March 1991 by
Peter ANGERMAIER against Austria and registered on 9 July 1991 under
file No. 18478/91;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is an Austrian citizen, born in 1949. He is
represented by Mr. G. Stanonik, a lawyer practising in Salzburg.
The undisputed facts of the case as submitted by the parties may
be summarised as follows.
In July 1985 the applicant brought a civil action for damages
against Dr. B., a medical doctor, and a pharmaceutical company. He
alleged that in 1982 the doctor had treated him with a newly developed
medicine of the pharmaceutical company without having given him
adequate information about the possible side effects of the treatment.
He alleged that the high doses of the medicine which he had to take
caused him serious bodily harm, inter alia a paranoid schizophrenia
resulting in his complete unfitness to work.
After a hearing on 3 December 1987 the Linz Regional Court
(Landesgericht) decided to obtain an expert opinion on the question
whether there was a causal link between the applicant's present health
condition and the treatment complained of.
The applicant successfully challenged two experts appointed by
the Court but his challenge against a third expert, Professor P.,
appointed on 9 June 1988, was rejected on 28 June 1988. By letter of
20 July 1988 Professor P. invited the applicant to contact him on
5 August 1988 for an examination. As the applicant did not appear he
was again invited on 7 November 1988 to present himself on
26 November 1988. This letter was returned with the information that
the applicant was living in the Federal Republic of Germany.
In an expert opinion of 21 December 1988 Professor P. denied
a causal link between the applicant's present complaint and the
previous treatment given to him by Dr. B. At the applicant's request
Professor P. was ordered on 22 February 1989 to examine the applicant
and to supplement his expert opinion. On 6 May 1989 the applicant was
examined by the expert who for health reasons had cancelled an earlier
appointment fixed for 8 April 1989. On 16 June 1989 the supplemented
expert opinion was submitted and served on the parties on 23 June 1989.
The parties were requested to submit observations on the expert opinion
before 28 July 1989.
Following a request of 21 July 1989 the applicant was granted
an extension of the time-limit for his observations on the expert
opinion until 30 September 1989. A further request for an additional
extension until 30 November 1989 was rejected by the Regional Court on
2 October 1989. Following a hearing on 6 November 1989 at which the
expert explained his opinion orally, the Linz Regional Court
dismissed the action on 14 November 1989 on the ground that the
plaintiff had not shown the existence of a causal link between his
physical complaints and the medical treatment given to him in 1982.
On 10 January 1990 the applicant lodged an appeal. In the
course of the appeal proceedings, i.e. on 21 March 1990, he submitted
a private expert opinion dated 8 January 1990 according to which there
was, in view of opinions expressed in medical literature, likelihood
of a causal link between the treatment received in 1982 and the
following side-effects: fever of 40 to 41 degrees, thrombosis of leg
veins with subsequent pulmonary embolism and a liver disease
(Leberparenchymschaden).
The applicant's allegation that his clinical condition
(Krankheitsbild) had worsened after the treatment and that the
consequences of the treatment were catastrophic was however not
confirmed by the private medical expert who found that this could not
be asserted with sufficient certainty (hinreichende Sicherheit).
On 5 June 1990 the Court of Appeal (Oberlandesgericht) in Linz
dismissed the appeal as being unfounded. The appellate court
considered that the lower court's finding that there was no causal link
between the applicant's physical complaints and his previous medical
treatment was unobjectionable.
In accordance with Section 482 (2) of the Code on Civil
Procedure (Zivilprozessordnung-ZPO) the appellate court refused to
consider the private expert opinion as it could and should have been
submitted in first instance (Neuerungsverbot). The Court added that
even if the private expert opinion were not considered an inadmissible
new fact the applicant had failed to submit it together with the
reasons for his appeal.
The appellate court agreed with the applicant that a medical
doctor was liable for damage caused by a treatment even when the
treatment was carried out in conformity with the ordinary care required
by the medical profession but without adequate prior instruction of the
patient as to possible negative consequences. This principle, so the
court concluded, did not apply in the applicant's case however as he
had not established a causal link between the treatment and the alleged
damage.
Insofar as the applicant had complained that neither the parties
nor his aunt Dr. K. had been heard as witnesses, the Court of Appeal
stated that the hearing of these persons was irrelevant as according
to constant jurisprudence a medical expert opinion could not be put in
question by statements of witnesses named by the parties.
The Court of Appeal refused to admit an ordinary appeal on
grounds of law (ordentliche Revision).
The applicant lodged a special appeal on points of law
(außerordentliche Revision). He mainly argued that the defendant
doctor failed to inform him adequately about the treatment and its
possible effects. Consequently he was liable regardless of whether a
causal link could now be established between the deterioration of his
state of health and the treatment in question. The Supreme Court
(Oberster Gerichtshof) dismissed the application on 30 August 1990 in
accordance with Section 502 para. 1 of the Code on Civil Proceedings
(ZPO) as being inadmissible stating that the appellate court's decision
was in line with the jurisprudence of the higher courts.
COMPLAINTS
The applicant complains that his request made in first instance
on 29 September 1989 to prolong the time-limit for his observations on
the official expert opinion was not granted. He submits that it is
very difficult to find an expert willing to give evidence against an
important pharmaceutical company. Therefore the fact that he was not
given enough time to prepare a number of questions to be put to the
official expert within the framework of a private expert opinion
constituted a violation of the principle of equality of arms.
He further complains that the trial court refused to hear the
parties as witnesses and a further witness, namely his aunt, Dr. K.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 14 March 1991 and registered
on 9 July 1991. On 13 January 1992 the Commission (First Chamber),
decided to communicate the application to the respondent Government for
observations on admissibility and merits.
The Government submitted their observations on 15 May 1992 and
the applicant replied on 28 August 1992.
THE LAW
The applicant complains of the dismissal of his civil action for
damages against a medical doctor and a pharmaceutical company. He
submits that he was denied a fair hearing as guaranteed by Article 6
para. 1 (Art. 6-1) of the Convention in that in first instance he was
not given adequate time to put in question the result of a medical
expert opinion or to produce a counter-opinion and that on appeal the
private expert opinion submitted by him was not considered because it
was not submitted together with the grounds of appeal. He also
complains that neither the parties nor the witness Dr. K. were invited
by the courts to give evidence.
The Government first argue that the applicant's special appeal
was an ineffective remedy offering no chance of success and that
consequently the final decision given by the domestic courts in the
applicant's case was that of the Court of Appeal of 5 June 1990, while
the application was lodged on 14 March 1991, that is not within six
months as required by Article 26 (Art. 26) of the Convention.
They also point out that the applicant did not complain before
the domestic higher courts of their refusal to grant him sufficient
time in first instance for the preparation of a private expert opinion.
The applicant replies in this respect that although the special
appeal on points of law was declared inadmissible it was, from his
point of view, not an ineffective remedy given the seriousness of the
arguments on which this appeal was grounded.
The Commission notes that the special appeal was mainly based on
the argument that the applicant had not been properly informed about
the possible risks of the treatment given to him by the defendant
doctor.
Even assuming that the special appeal was an effective remedy,
the application must be rejected for non-exhaustion of domestic
remedies, as the applicant has neither in his appeal nor in his special
appeal complained of the refusal of the first instance court to grant
him a second extension of the time limit for the submission of a
private expert opinion.
Furthermore, he has not in his special appeal complained that
Dr B. was not heard as a witness.
He can in these circumstances not be considered to have exhausted
the remedies available to him under Austrian Law.
It follows that the application has under all circumstances to
be rejected in accordance with Article 26 and Article 27 para. 3
(Art. 26, 27-3) of the Convention.
For these reasons the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the First Chamber President of the First Chamber
(M. F. BUQUICCHIO) (J.A. FROWEIN)
Full & Egal Universal Law Academy