Patientin klagt gegen öffentliches Krankenhaus in Fribourg; Haftung nicht bewiesen.
Walder Wyss Rechtsanwälte | Decision 4A_554/2025 of 9 June 2026
2025 of 9 June 2026
In its judgment, the Federal Supreme Court (the Court) dismissed, to the extent it was admissible, the appeal of a patient against a judgment of the Cantonal Supreme Court of Fribourg ( Tribunal cantonal de l’État de Fribourg ) of 23 September 2025, thereby confirming the rejection of her liability claim against a public hospital. In dispute was whether a natural causal link existed between the hospital’s breach of its duty of care and the neurological injuries the patient had suffered.
After an uneventful pregnancy and delivery in 2016, the patient developed back pain that became acute on 21 April 2016. She presented to the hospital’s emergency department only on the evening of 23 April 2016. Despite a clinical picture suggestive of cauda equina syndrome and a CT scan revealing a suspicious collection that called for an immediate MRI, the MRI was delayed by more than twenty hours. Following the eventual decompression surgery, she was left with severe and permanent neurological injuries (paraparesis, para-hypoesthesia, and sphincter dysfunction) resulting in full invalidity as recognised by the cantonal disability insurance office.
As the hospital was a public one, its liability was governed by cantonal public law on state liability, requiring an unlawful act, a loss, and a causal link. The cantonal court accepted both the unlawful act (the excessively long treatment, the physicians having failed to recognise a serious condition despite typical symptoms) and the loss, but held that the natural causal link had not been established to the degree of preponderant probability, which requires a level of certainty clearly higher than 51%.
The Court confirmed this assessment, reviewing it only for arbitrariness since cantonal law applied. It held that causation could not be determined by an arithmetical calculation based on statistics, but had to be assessed in light of all the circumstances of the individual case. The general figure cited in the expert report of 24 January 2022 – that around 30% of patients do not fully recover even with optimal treatment – reflected a general statistic, not the patient’s concrete situation. Since the patient herself had waited some 48 hours after the onset of symptoms before presenting to the emergency department, whereas rapid treatment was decisive in the case of an epidural abscess, the cantonal court could reasonably find that her risk of complications would have been significantly higher than 30% even with immediate treatment. It was therefore not untenable to conclude that a hypothetical causal link between the breach and the injuries had not been established to the required degree. The Court also held that the cantonal court could disregard a report prepared for the disability insurance office, which had likewise relied on general statistics without assessing the specific circumstances. The appeal was accordingly dismissed.
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