Oct 27, 2023.

Be it a minor mishap at the dentist or lifelong pain following gross medical negligence: if your health has been damaged, you are entitled to compensation. But the road to justice is often long and arduous. This makes it all the more important that you receive excellent support as the victim of medical malpractice.


Pain, anger and helplessness – anyone who experiences health problems following incorrect treatment by a doctor often faces a lengthy battle for compensation. From the burden of proof, through tight deadlines, to the right support: you need to consider all of this if you have been the victim of a botched medical procedure.

Your rights as a patient 

Medical professionals must treat their patients with care. They are obliged to do this according to the “laws of medicine” (“lege artis”). But they cannot and should not promise that the treatment will be successful. 
If you are about to have an operation, a medical professional must inform you of the risks and the procedure. Armed with this knowledge, you can agree to the treatment. Only then does it become legal. But if a complication arises during treatment or the procedure doesn’t go as planned, this does not necessarily mean it has been medically botched.

When does it become medical malpractice? 

Only if you can prove that the medical duty of care has been breached and your health has been damaged as a result. In other words: if the person responsible has failed to treat you according to the regulations and latest scientific standards.
In such a case, the doctor’s or hospital’s insurance must cover your loss of earnings. And it must cover your legal fees and other consequential costs if you can no longer perform everyday tasks independently. As the victim of medical negligence, you can also claim compensation. The prerequisites for all of this are that you can prove medical malpractice and you settle your claim in or out of court.

How difficult is it to claim medical malpractice?

This approach often requires a great deal of patience and nerves of steel. The patient must be able to prove that the medical professional breached their duty of care and that the damage to their health was clearly caused by this.  
Medical malpractice is difficult to prove, because doctors are allowed to decide for themselves which treatment is best suited to a specific situation – provided it corresponds to the rules of science. So there is a certain degree of flexibility with medical duty of care. An expert report or second opinion is therefore essential to be able to prove medical negligence. Evidence that the duty of care has been breached can often be found in medical records stored at the hospital – provided the file has been scrupulously maintained.
If you can prove that the duty of care was breached, then contact the professional liability insurance of the doctor responsible for the incorrect treatment, or seek assistance from your legal protection insurance.

How can legal protection insurance help in difficult cases?

It is demoralising and often extremely emotional for those affected to have to spend months or even years fighting for their rights. Therefore, support from your legal protection insurance is particularly valuable in the event of medical malpractice. Professionals will help you carefully determine your medical and legal situation so you are in a good position to claim compensation and you understand your chances of success. They will also clarify details such as: How much time did the doctor spend on your treatment? Were their skills up-to-date at the time of the malpractice? Were they qualified to carry out the procedure?

Medical negligence – what should I do? These are the most important steps:  

  • Tell the medical professional who was or is responsible for your treatment that you are unhappy with the result and are experiencing problems. If you can’t come to a mutual understanding, you should seek a second opinion. 
  • Contact your legal protection insurance and/or the Swiss Patient Organisation (Schweizerische Patientenorganisation, SPO). Their professionals will help you understand your medical situation and establish the facts. 
  • If there are indications of medical negligence, you should submit your claim quickly so it doesn’t become time-barred. Your legal protection insurance or a lawyer specialising in botched medical procedures will also help with this. An independent doctor is usually asked for their medical opinion of the medical malpractice.
  • This opinion will allow you to assess your chances – either of settling out of court or receiving a favourable outcome in court. But do not begin proceedings until you know exactly which costs you will incur. 


Fortuna Legal Protection Insurance – a subsidiary of Generali Switzerland – has been helping customers to access justice for 50 years. During this time, it has grown significantly and now applies the expertise and experience of over 100 employees in 31 branches of law.