What happened?
A 19-year-old patient was receiving orthodontic treatment from a dentist. He recommended the removal of all four wisdom teeth and performed the corresponding surgeries. Postoperatively, the patient exhibited dysfunction of a facial nerve on the left side – a complication described as typical for such procedures. The patient sued the dentist for damages in the amount of EUR 62,420. The plaintiff based her claim on the lack of effective consent due to insufficient information disclosure, citing a mild intellectual disability (ICD-10: F70).
Regarding the disclosure process, the court found the following:
The dentist discussed an information sheet concerning all four wisdom teeth with the patient, documented the disclosure, and explicitly pointed out the risk of a persistent nerve injury. The patient took the information sheet home after the consultation.
Moreover, the plaintiff was diagnosed with a mild intellectual disability, which was claimed to be the reason for the insufficient disclosure. As a result, she was only able to understand parts of the information sheet. Medical terms such as “abscesses” or “cysts” were not comprehensible to her. With support (e.g., from her mother), she would have been able to understand the disclosure and give informed consent. However, during the consultation, the dentist did not notice any cognitive impairment. Given the plaintiff’s inconspicuous demeanor, such an impairment would not have been apparent to an average dentist (recognition of such impairments would more likely be expected of psychiatrists). The practice staff also noticed nothing unusual during the medical history intake or the brief admission interview.
How did the Supreme Court (OGH) rule?
The OGH dismissed the patient’s appeal and upheld the decisions of the lower courts:
The dentist is not liable, as the consent was valid and no fault could be established. The decisive factor was that the dentist had conducted the disclosure orally using the form and had explicitly addressed the specific, relevant risk of nerve injury. In the OGH’s view, this combination of individual risk discussion and appropriate documentation meets the requirements for patient-specific disclosure.
The plaintiff’s central argument – her mild intellectual disability and the resulting limited understanding of the information sheet – was unsuccessful:
The assessment is based on the ex-ante perspective of a diligent average dentist. During the consultation, there were no noticeable cognitive abnormalities or impairments, and the practice staff also noticed nothing of the sort. Therefore, there was no reason to involve a trusted third party or to further “simplify” the disclosure. The OGH emphasizes that the right to information does not establish strict liability for perfect comprehension. Liability arises only from culpable (subjectively blameworthy) failure to disclose. Against this background, no medical liability arises in this case, and the appeal was therefore dismissed.
(Decision 8 Ob 65/25d of 12 August 2025)
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