• D Andel, G Röder, K Markstaller, and H Andel.
• Abteilung für Allgemeine Anästhesie und Intensivmedizin, Universitätsklinik für Anästhesie, Allgemeine Intensivmedizin und Schmerztherapie, Mediznische Universität Wien, Währinger Gürtel 18-20, 1090, Wien, Österreich.
• Anaesthesist. 2015 Mar 1;64(3):227-34.

BackgroundStatistically, the chance of a patient to win a court case because of a legally insufficient informed consent is approximately 70%. In Austria the judgment whether the anesthesia-related risk of a patient was correctly addressed depends generally on the opinion of a certified expert court witness (CW).ObjectivesThe opinion whether well-known anesthetic risks in a commissioned court report drawn by Austrian CWs would be considered to be "typically anesthesia-related" and "needed to be addressed" when obtaining an informed consent was evaluated.Materials And MethodsA questionnaire was sent to all Austrian CWs with 79 known anesthesia-related risks. The percentage of CWs who considered the enumerated risks as "typically anesthesia related" and "needed to be addressed" when obtaining informed consent was evaluated.ResultsIn 32 out of 79 risks between 40% and 60% of the CWs were of the opinion that informed consent was necessary. Therefore, in a legal dispute on whether an informed consent was legally sufficient or not, the judgment of the CWs is unpredictable. In addition, due to the large number of possible complications needed to be addressed, it is not feasible to obtain a legally compliant risk disclosure.ConclusionIn future new methods of knowledge transfer to the patients should be developed. In addition, a standardization of the evaluation criteria for CWs in terms of improvement of legal certainty would be desirable.

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