The Supreme Court of Germany cited a paper by Franco Ferrari, professor of law, in a decision concerning the law applicable to liability for medical malpractice in a case involving a lawsuit brought by a German patient against a Swiss doctor. Professor Ferrari, who is also the Director of the Law School’s Center for Transnational Litigation and Commercial Law, is an expert on European conflict of laws.
The Court was faced with deciding whether the law applicable to the lawsuit brought by the German patient against the Swiss doctor was subject to the laws of Germany (where the plaintiff had its place of business) or those of Switzerland (where the defendant had its place of business). The German Supreme Court resorted to its conflict of laws rules, which have since been replaced by the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual (so-called Rome I Regulation), to get to the application of Swiss law as the law that was most closely connected to the contract. In writing its 19 July 2011 opinion (http://lexetius.com/2011,4531), the German Supreme Court relied on a paper by Ferrari asserting that for the purpose of identifying the law applicable to a doctor-patient relationship, one would have to look at the law of the doctor, as the doctor is the party effecting the performance that is characteristic to the doctor-patient relationship and, thus, the party whose law is most closely connected to that kind of contractual relationship.