Hard case, bad judgment

After the promulgation of the judgment, as well as the first Interviews for radio and press are finished, the nesting of the Munich lawyer, Wolfgang Putz on his right jacket pocket. “My Talisman,” says plaster, and pulls out a purple cloth bag cloth, which is folded to form a triangle. The gift of his wife had helped him in a proceeding to the Federal court of justice (BGH). But not this Time: “It has brought nothing.”

The experienced Munich-based medicine lawyers has represented in the previous process, a man by the treating physician for Pain and suffering and damages for this, wanted this kept his father in spite of hopeless suffering for too long, by means of artificial nutrition at life. The judges of the VI civil Senate rejected the.

“The judgment does not fit into current medical law”

In the negotiation a few weeks ago had indicated that it would decide the Senate against the plaintiff. However, the rationale that provided the presiding judge Vera von Pentz, even if initially only orally and in a press release, has shocked the representatives of the plaintiff: “This judgment does not fit in the existing medical law.” And this is still expressed cautious.

What have proclaimed to the Supreme court, says plaster, not more mean in the consequence of “living up to”. And even “unlawful conduct of the physician remains under civil law without consequence,” says Richard Lindner, the German Federal court of justice lawyer of the plaintiff, because the Supreme court refused a pain of money, or damages because of the life attitude in General. This applies, therefore, even if there had been a clear willingness of the patient to forego life-sustaining measures.

In addition, the judgment could be that a life “is absolutely worthy of preservation,” not only when life-prolonging measures. It is also the previous case-law of the Supreme court could speak to the so-called “child as harm” cons: After a physician for the maintenance of the child and also for the treatment is liable to costs, if he has not indicated when the investigation of a mother-to-be to circumstances such as an impending or already existing damage to the embryo, which would be entitled to a termination of pregnancy.

Only to relieve Suffering

Had sued Heinz Sening, as the head of a nursing Department of a hospital, basically, against a General practitioner, because this had to continue the artificial feeding of his father, as this hard-to-dementia sick, completely paralyzed, and permanently of a variety of inflammation plagued, in a nursing home then, lushly vegetated. The doctors did not want to adjust the artificial feeding, even when he had realized that it could go in the case, only a “palliative” care, is to relieve the Suffering of the man.

From the point of view of the plaintiff, the doctor had violated at least its information obligations. Since there is no living will existed, and for the husband a legal caregiver, a lawyer, was appointed, would have had to have the doctor from the point of view of the son, so at least these are the questions of how to proceed. The son hands were tied to a large extent: The supervisor had said to the doctor, to talk with the son, or treatment records. After the father had died, demanded the son, as the heir of his father whose Right for Pain and suffering as well as compensation for the cost of treatment. A total of more than 150,000 euros.

The case is in this Form, as the experts agreed. It had to have been run very much wrong, that the artificial feeding of the man has not been canceled earlier, and the process came at the end of this court. According to this judgment, but such constellations could be even more frequent.

Further no harm is life

This is on the grounds of the judge’s award: a treatment or education error occurred, the Federal Supreme court now explicitly. The claim for Pain and suffering damages, the Supreme court had, rather, to the whole of principle to fail: The judge of Pentz, is the human life “the highest-ranking legal interest, and absolutely worthy of preservation”. A balance so that the quick death is preferable to a suffering-ridden life, is not legally possible: “when a Patient himself may regard his life as unworthy of” forbid the state and the courts in the “conclusion, this life is a harm.”

In its absoluteness, this statement would mean that Doctors no longer need to in the future, be financially responsible, if you get in a duty contrary to the way of life. This should even apply if you are a life-support measures continue, even though the a clear in a patient’s expressed will. And that might even grab when it comes to cases of “wrongful life”, i.e. non-desired life after missed opportunities for termination of pregnancy.

The Federal court of justice is likely to get at least some of the difficulties with this new law. It was “not necessarily”, here is a view of a life as damage, exclude, warns Supreme court lawyer Lindner; it is not a question that the state valued the life as unworthy of life, but that “the actual or alleged decision of the patient or his carers will respect that this wants in the specific circumstances there is no life”.

Protection is not the interest of the patient?

In the consequence, so cleaning had to apply to this absolute protection of life, even for the medical Act itself. That life “is absolutely worthy of preservation” would mean, so cleaning that even a Patient who is already Dying, and then about a cardiac arrest suffers, it must again be resuscitated.

That the Federal court declines costs in addition to compensation for unnecessary spent of treatment and care, is even less comprehensible: Such costs were not included in the “protective purpose” of the medical education and treatment obligations, a judge of Pentz, because this was not intended to prevent economic burdens, “connected with the life and the life of adhering to disease-related Suffering.” Also this statement is so definite in character as to be doubtful.

Because the fact that some relatives may not demand due to its own financial interests, life-sustaining measures or other treatments is clear. But the interest of the patient, in a state that he no longer considers life worth living, not even a significant financial burden on the families present, should be not really worthy of protection? In the case of decisions of a patient financial issues often play a role, at least when the Patient must bear the costs, wholly or at least partially, which is particularly important in care situations, or when privately insured, is quite normal.

If life-prolonging measures are not set

That damage is excluded replacement for the improper life support, would apply even if, for example, a nursing facility receives, contrary to the declared patient’s will, the life, and thus, also towards the members – the more cash you can make. The care of coma patients, as cleaning, is relatively lucrative.

Such a fear is not out of thin air, the white plaster In upper Bavaria there are nursing homes, exclude it in your shooting conditions, explicitly, that life-prolonging measures to be discontinued and even if a living will would require.

Legally hardly tenable. However, if necessary, members would have to enforce the court that such a contract is declared null and void – and that can take time. The treatment and care costs, the emergence until then, you would have to carry according to the BGH-the giudicato but still. “This is something that bothers me massively,” says Supreme court lawyer Lindner. Even a substitute for other treatment damage error could be related to this judgment in part on the Butt, says Lindner, “for what is supposed to be different, if it’s not about life, but to the health?”

The written reasons for Judgment are not. But it is hardly to be expected that the key messages from the oral explanation and the press release will not also be so in the written judgment.

Hard cases make bad law, difficult cases lead to poor Judgments, is a well-known lawyers of wisdom. The Supreme court has confirmed this finding in its judgment on fulminant type.