Constitutional Law, Human Dignity, Medical Malpractice, Right to Life

Can Doctors Be Sued for Prolonging Life?

The decision hasn’t been published yet (g), but the Federal Supreme Court of Justice (BGH) recently ruled on an appeal involving damages for the prolongation of human life. So far the Court has only published a press release (g), but it contains most of the necessary information.

The plaintiff is the son of a man who was born in 1929. The father developed advanced dementia, and was incapable of movement or communication. There was no hope of a cure. The father had not created an advanced directive or living will, and there was no other evidence about his end-of-life wishes (except vague testimony from a friend that he wanted to “grow old”). Therefore, his doctors prolonged his life using a feeding tube. The son filed a complaint, claiming that the doctors violated their duties by needlessly prolonging the life and suffering of his father. The father eventually died, but the son was permitted to continue the suit as his legal heir.

The Regional Court dismissed the complaint, but the Higher Regional Court reinstated it, and awarded the plaintiff €40,000 in damages for pain and suffering (Schmerzensgeld) and the expenses of providing for his father’s continued care. The Court observed that the case was one of first impression, since this situation had not been addressed since the passage, in 2009 (g) of new regulations (found in §§ 1901 ff. of the Civil Code) regarding living wills and determining patients’ wills. The court ruled that the doctor had failed in his duties to properly consult with and explain the options to the patient’s custodian, with the result that the patient received medically inappropriate care — continued feeding of a person who had no chance of recovery and might have thereby been forced to suffer.

The Federal Supreme Court of Justice, Germany’s highest non-constitutional court, reversed the Higher Regional Court’s decision. According to the press release (g), the Court first categorically ruled out pain and suffering damages for a claim involving the prolongation of human life:

Human life is one of the paramount legal interests, and worthy of absolute preservation. No third party can be permitted to judge its value. Therefore, it is impermissible to view the prolongation of life — even life which is marked by suffering — as giving rise to legal damages (Art. 1 para. 1 (human dignity) Art. 2 para. 2 sentence 1 GG (right to life).

The Court then addressed the plaintiff’s claims for compensation for costs of medical care. The Court held that, even if the doctor had violated possible duties to explain and provide proper care to the patient, the purpose of these legal rules (Schutzzweck) was not to save family members the costs of extra care, or to “ensure that the patient’s heirs receive as much inheritance as possible.”

Over at  the Einspruch (Objection) podcast (g) co-host Constantin van Lijnden critiques the decision. By establishing the principle that prolonging life can never lead to legal liability for pain and suffering — because “human life can never be a form of legal damage” — van Lijnden thinks the Court has summoned a whole host of unintended consequences. For instance, consider a patient who has a valid living will and is suffering horrible pain from an incurable disease. Even though the law recognizes these wills, a doctor who ignores his wishes and keeps him alive (perhaps owing to the doctor’s religious convictions) would not face a damages judgment — since prolonging life can never lead to pain and suffering damages.

Ironically, the doctor could face criminal liability, since treating a patient without consent is a form of battery. So a doctor could be convicted of a crime, but not sued for damages — a strange result in any legal system. (The podcast’s co-host, Corinna Budras, argued that even if van Lijnden were right, the issue was unlikely to ever come up, since it’s hard to imagine why a doctor would knowingly ignore a patient’s legally-binding wishes.) Van Lijnden also thinks the rationale for denying compensation for extra care costs is unconvincing.

This case is a textbook example of the German Basic Law acting as an “objective system of values” (objektive Wertordnung) which has a “radiating effect” throughout the entire German legal system. As a general matter, the case shows how powerful the fundamental-rights provisions of the German constitution can be. Guarantees of the right to “life” and “dignity” and the “development of the personality” tend to sound vague and abstract to Anglo-Saxon lawyers, but German courts frequently use them to intervene in many different areas of the law, from contracts to criminal law to medical liability — and even prostitution (g) and dwarf-tossing (g).

The case might go before the Federal Constitutional Court, since it involves constitutional issues and — if van Lijnden is right — may have been too broadly decided. If the case goes before the Federal Constitutional Court, I’ll post an update here.

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