After the announcement of the verdict, as well as the first interviews for radio and the press are finished, the Munich lawyer Wolfgang Putz fiddles on his right jacket pocket. "My talisman," says Putz, pulling out a purple-colored handkerchief folded into a triangle. The gift of his wife had helped him once in a case at the Federal Court (BGH). But not this time: "It did not work."
The experienced Munich medical lawyer has represented a man in the process so far, who wanted pain compensation and damages from the attending physician for keeping his father alive for too long by means of artificial nutrition despite his hopeless suffering. The judges of the VI. Civil Senate refused.
"Judgment does not fit into current medical law"
Already in the hearing a few weeks ago had suggested that the Senate would decide against the plaintiff. However, the reasons given by presiding judge Vera von Pentz, albeit initially only orally and in a press release, have shocked the plaintiff's representative: "This ruling does not fit into the current medical law." And that is still reserved.
What the BGH has proclaimed, says Putz, means in consequence "life support to the point of no more". And even "an unlawful behavior of the doctor remains civil law without consequence," said Richard Lindner, the BGH lawyer of the plaintiff, because the BGH generally refused a compensation or compensation for life support. This is true even if there had been a clear will of the patient to forego life-sustaining measures.
Moreover, the ruling that a life is "absolutely worthy of preservation" could not only apply to life-prolonging measures. It could also contradict the previous case law of the BGH on the so-called "child as damage": Thereafter, a physician is liable for child maintenance and also for treatment costs if he has not pointed out in the investigation of an expectant mother to circumstances such as an imminent or existing injury of the embryo that would have justified abortion.
Only relieve suffering
Heinz Sening, who is the head of a nursing department in a hospital basically himself from the subject, sued against a general practitioner, because he had continued the artificial diet of his father, as the severely demented, completely paralyzed, and permanently plagued by various inflammations, in one Nursing home vegetated. The physician did not want to stop the artificial diet, even when he realized that in this case, it could only be a "palliative" care, so to alleviate the suffering of the man.
From the plaintiff's point of view, the doctor had at least violated his duty to inform. Since there was no living will, and for the man a legal advisor, a lawyer, was ordered, the doctor would have to ask at least from the son's point of view, how to proceed. The son himself was largely bound by the hands: The caregiver had forbidden the doctor to talk to the son, or to give this treatment documents. After the father had died, the son demanded as his father's inheritance from his right pain compensation and treatment costs. Total good 150,000 euros.
The case is extreme in this form, as the experts agreed. It had to go very wrong, that the artificial diet of the man was not broken earlier, and it came in the end to this lawsuit. After this judgment, however, such constellations could even become more common.
Living on is no harm
This is due to the justification of the verdict: The fact that a treatment or reconnaissance error was present, the BGH was now explicitly open. On the contrary, the Federal Court of Justice (BGH) failed in its claim to compensation for pain and damages because of quite fundamental considerations: First, according to Judge von Pentz, human life is "a top-ranking legal matter and absolutely worthy of preservation". A consideration to the effect that the quick death is preferable to a life afflicted with suffering, is not legally possible: even if "a patient may even consider his life to be unworthy of" forbids the state and the courts the "conclusion that this life is a damage ".
In its absoluteness, however, this statement would mean that physicians no longer have to be financially liable if they receive life in a manner contrary to their duties. This is likely to be the case even if they continue life-support measures, although this is opposed to a clear will expressed in a living will. And that could even be effective when it comes to cases of "wrongful life", ie unwanted life after missed abortion options.
In any case, the Federal Court of Justice should in future be faced with some difficulties with this new case law. It is "not absolutely necessary" to exclude a consideration of life as damage, warns BGH lawyer Lindner; It is not a question of the state valuing life as unworthy of life, but of "respecting the actual or presumed decision of the patient or his caregiver, that he does not want to live under the specific circumstances".
Is the patient's interest not worthy of protection?
As a consequence, according to Putz, this absolute protection of life must even apply to medical treatment itself. The fact that life is "absolutely worth preserving" would mean, for example, according to Putz, that even a patient who is already dying and then suffers from a cardiovascular arrest must be reanimated again.
The fact that the Federal Court also refuses to pay damages for unnecessary treatment and care costs, is almost even less understandable: Such costs are not included in the "protective purpose" of the medical information and treatment obligations, Judge of Pentz, because these were not used to prevent economic burdens "associated with survival and the disease-related ills inherent in life". This statement too is as apodictic as it is doubtful.
For it is clear that family members may not ask for their own financial interests to discontinue life-sustaining measures or other treatments. But should not the interest of the patient, in a condition that he no longer considers worth living, not to represent a significant financial burden on relatives, really be worthy of protection? In the case of a patient's decisions, financial questions often play a role, at least when the patient has to bear the costs completely or at least partially, which is quite normal, especially in cases of care, or often even for private insured persons.
If life-prolonging measures are not discontinued
The fact that compensation for improper life expectancy is excluded, would apply even if, for example, a care facility contrary to the declared patient will keep it alive, and thus - even against the relatives - continue to make cash. Especially the care of waking coma patients, according to Putz, is relatively lucrative.
Such a fear is not out of thin air, knows Putz: In Upper Bavaria, there are nursing homes, which explicitly exclude it in their reception conditions that life-prolonging measures are set - even if a living will demand it.
Legally, that's hardly tenable. But if necessary, relatives would have to force in court that such a contract is declared invalid - and that may take time. The treatment and care costs, which accrue until then, they would have to wear after the BGH Judiciary anyway. "This is something that bothers me massively," says BGH lawyer Lindner. Even compensation for other treatment errors could be with this verdict partly in the balance, says Lindner - "because what should be different here, if it is not about life, but about health?"
The written reasons for the judgment are still not available. But it is unlikely that the key messages from the oral statement and the press release will not be reflected in the written judgment.
Hard cases make bad law, difficult cases lead to bad judgments, is a well-known lawyer's wisdom. The Federal Court of Justice confirmed this finding in a brilliant way with its judgment.