No contributory negligence on the part of the patient due to the culpable causation of his need for treatment

According to established jurisprudence and prevailing academic doctrine contributory negligence on the part of the killed relative is taken account in the survivors’ claims for damages (§ 1327 ABGB) against the injuring party per analogy to § 7 (2) EKHG. A mere carelessness against one's own goods is enough; culpability or unlawful conduct is not required. Under medical malpractice law only such conduct of the patient can be taken into account as co-responsibility which leads to an increased damage caused by a treatment error or incorrect medical advice of the physician or which had prevented a reduction in the damage. However, the patient's own negligence causing his or her need for treatment, for example, causation of an accident does not constitute any contributory negligence on the part of the patient vis-à-vis the doctor. [OGH  05.02.2016, 9 Ob 76/15i]

• [“ABGB” is the Austrian Civil Code; “EKHG” is the Austrian law on CivilLliability Act on Motor Vehicles and Railway Plants;