The Higher Regional Court of Munich (OLG, Az. 1 U 454/17, judgement of 21.12.2017) sentenced a family doctor to pay 40,000 € – inherited – compensation for pain and suffering for immaterial damages to the heir. The deceased had been artificially fed, among other things by a PEG probe, and kept alive for about 21 months longer than necessary.
The legal claims for material damages, for the consumption of property by the deceased during the period in question (and thus reduced estate on the day of death) and for reimbursement of unnecessary expenses incurred by (potentially private) health and nursing care insurance funds were not sufficiently or even not at all explained, § 86 VVG.
Lack of non-legal expertise costs plaintiffs money?
The amount of the claim had already been too high for the damages for pain and suffering. At best, an expert or private surveyor would have been called in for the material financial loss. Thus, in the end, 74% of the legal costs hit the plaintiff, which means a probably avoidable damage for the heir.
Not “in doubt for life”
The Higher Regional Court found “a violation of the duty to inform about the intervention as a prerequisite for an effective consent of the caregiver to continue the life-sustaining treatment”. And: “According to the general principles of medical liability law, however, the treating physician must prove that the patient would have agreed to the measure even if he had been properly informed”. In the present case, one (professional) supervisor had not been informed. Life-sustaining treatment is illegal bodily injury if the patient – or his or her carer – does not explicitly request it fully informed and it is no longer medically indicated by any treatment objective. Merely prolonging suffering without any chance of improvement cannot be such a treatment goal.
The more difficult the case is – the more thorough the clarification
“Even if the relevant guidelines have given the physician a margin of discretion in this respect, this does not mean that the treating physician is released from his duty to inform the patient – or in this case his caregiver – , rather, the present situation with dubious indications required a particularly thorough discussion”.
Attitude of the doctor allows to withdraw from the treatment
The “defendant was not allowed to withhold the necessary information from the caregiver because of his personal attitude in matters of passive euthanasia, which would not allow an end to artificial feeding with the consequence of death if the patient’s will could not be established (…), and to subordinate himself without discussion to the caregiver’s treatment wishes with regard to the patient”.
compensation for loss of life and prolongation of suffering
There is no “absolute obligation to maintain life support in situations where artificial measures can only maintain individual physical functions without any prospect of improvement”.
“Because the supply of nutrients via a PEG probe to a patient who, as a result of severe and irreversible cerebral damage, is unable to eat food naturally despite assistance, is precisely a perverse intervention in the normal course of life, which includes dying”.
If death had been a release
The Higher Regional Court assumes that if the occupational counselor responsible for the deceased was informed, he or she would “have let the patient die because death would have been a redemption for him or her”. The judge of the lower court considered it uncertain how a medically enlightened caregiver would have decided and dismissed the case “for lack of causality”.
Could the heir have also sued the professional counselor?
The carer is also liable for damages for pain and suffering and compensation for financial losses, for example in the case of a reduced estate and a lack of information to the private health insurance company about reimbursement of costs not recognised as unnecessary – and not even insured according to the private insurance conditions; §§ 280 I, 249, 251 BGB. A private health insurance company that does not check its promise of benefits for medically necessary treatment at the expense of the insured person, but instead reimburses the practitioners for non-indexed prolongation of suffering measures and thus makes their continuation financially possible, is partly to blame.
It already appears to be contrary to duty if a (professional) caregiver does not maintain close contact with doctors and nursing staff, if “the bedridden and incontinent patient had to suffer massive health impairments (in particular decubiti, cramps, fever, pain, breathing difficulties, pneumonia, gall bladder inflammation) over a period of approx. 21 months until the onset of death, even if his ability to perceive may have been – possibly severely – reduced as a result of the advanced cerebral decomposition”. In practice, caregivers too seldom have the care documentation presented to them.
At least one decubitus ulcer (as a lack of nursing care) should already affect up to more than every third bedridden person in old people’s and nursing homes – which can already indicate compensation for pain and suffering. If the (professional) supervisor is guilty of conditional intent, his liability insurance will not contribute anything. Courts, on the other hand, are not liable because official liability is excluded according to § 839 BGB, if someone else is liable, e.g. caregiver, doctor, home management or the private health insurance for prolongation of suffering.
Karl Valentin would perhaps speak of a “dirty gang”; the lawyer would speak of a gang at the earliest from a group of three with a joint decision to commit a crime (BGH, GSSt 1/00, decision of 22.03.2001) – but not yet of a mafia.
When the living will unnecessarily delays the dying process
If an unconscious patient is kept alive without any prospect of improvement, this may be due to the fact that the Patient Decree with power of attorney does not define the term “life-prolonging measures” in a sufficiently concrete manner. In many cases, there are no concrete treatment situations and diseases, even those that were already foreseeable in the recent past, including medical education in living wills. Even the – even only presumed – wish of the patient for further treatment that is not medically indicated can never be a reason for the private health insurance to pay for such medically unnecessary (“curative”) treatment.
Ineffective forms from church, municipality, ministry, health insurance company, professional chamber
The Federal Court of Justice (decision of 6 July 2016, ref. XII ZB 61/16) ruled on a sample form used by the Protestant Church. The masses of forms remind us of the blind man’s question to the lame “How’s it going?” – “As you see!” the lame answered the blind man.
The text should stipulate that the authorised representative is responsible for consent and revocation, as well as non-consent to medical measures – but also that these decisions can lead to the death of the person giving the power of attorney and to serious long-term damage. Example: The indication “in case of severe permanent brain damage” is too imprecise.
Free forms – without personal advice from a doctor or lawyer – become a boomerang.
Specialist in general medicine is not enough in case of doubt
The Federal Court of Justice (BGH) requires the issuer of a Patient Decree to state his or her will concretely and precisely – so that it becomes clear that someone has “informedly decided” what he or she wants. Legal advice is not enough for this – medical advice is also required, and must be recorded in writing as evidence. This restricts the private autonomy in a responsible way.
The Federal Court of Justice (decision of 08.02.2017, ref. XII ZB 604/15) requires the designation of “concrete treatment situations” for decisions in the patient will. Sufficiently specified diseases or treatment situations must be named in addition to measures.
A man goes to hell…
Everywhere he sees only golf courses, tennis courts, swimming pools etc. – and above all everywhere only happy people. He wanders around and sees a wall. Behind it: hellfire, souls roasted at the stake, in short: all the tortures you can imagine.
The man is asking the devil:
“Say, it’s so nice here, what about the people behind the wall?”
The devil replies: “Oh, it’s the Catholics, they expect it that way”.
Still in 2018 the Vatican clarified the meaning of the misunderstood Pope: “Hell exists”!
According to church opinion, the dominant view – so it is propagated – is that suffering can have a redemptive effect, especially at the end of life, so that in palliative medicine complete freedom from pain or unconsciousness is never allowed as long as the patient has not completely come to terms with himself, God and the world. Except that this is no longer to be expected in any case and, moreover, is the express wish of the patient.
The church is obviously interested in prolonging life – apparently superficially when in 2017 a “director of organ donation” is invited to the Pontifical Academy of Science, who is said to be jointly responsible “for murder after organ order” of Falun Gong, Tibetans, Uyghurs or domestic Christians. This appears as a conspiracy theory, like the abuse cases.
Suicide is made more difficult by churches, legislators, courts and ministers
Every year up to more than 100,000 people attempt suicide – up to 10% are successful.
Underground, suicide is exempt from punishment – but “dying companions” are prosecuted, even in the simplest case for failure to help, as soon as the suicide has lost control over himself: punishable killing on demand “by omission” is when the “bystander” attends the hanging, and then leaves instead of cutting off the suicide, § 216 StGB (OLG Hamburg, decision of 08.06.2016, Az. 1 Ws 13/16).
The Federal Administrative Court (judgement of 02.03.2017, Az. 3 C 19.15) approved the purchase of a lethal dose of narcotics for suicide if the person concerned “is in extreme distress because of a serious and incurable illness”. However, the responsible ministry did not issue the corresponding recipes (Panorama of 31.05.2018).
Hospices do not practise active euthanasia
The renunciation or discontinuation of treatment (terminal care) is permissible in the dying process and unpunished – in advance only if the patient’s last will and testament is valid (BGH, decision of 25.06.2010, ref. 2 StR 454/09, Putz case). Active intervention to end life, on the other hand, is punishable by law. The hospice is a legal option because the treatment goal of freedom from pain (“indirect euthanasia”) is central – even if life is (indirectly) shortened. In medical practice, the transitions are fluid. The private health insurers (PKV) did not commit themselves to reimbursement until years after the GKV. Abroad, for example in France, “terminal sedation” of terminally ill patients has been available for a few years.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on 01.10.2018)
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About the author
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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