Federal Supreme Court, Decision 4A_168/2021, 4A_172/2021 of 6 September 2021

1 October 2021 – In this decision, the Federal Supreme Court had to assess an alleged breach of the doctor's duty of care. The lower court had previously affirmed a breach of duty of care by the defendant, against which both parties appealed. The plaintiffs specifically complained that the defendant had failed to carry out an HIV test despite opportunities to do so, which ultimately led to the death of the patient. In addition, the plaintiffs saw a violation of the doctor's duty of care in the incomplete keeping of the medical records.

After a comprehensive examination, the Federal Supreme Court came to the conclusion that the case had to be referred back to the lower court so that the lower court could examine the question it had (ultimately) left open as to whether an HIV test should have been carried out as a matter of routine at that time, but whether the pregnant woman could have refused to have it carried out (opting out), or whether it had to be expressly requested at that time (opting in). Since it was not clear if an HIV test should have been carried out at all during the initial consultation, it was not clear whether a duty of care could be affirmed in this regard. Accordingly, the defendant's appeal was partially upheld and the case was sent back to the lower court for reassessment.

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