The Bundesgerichtshof (German Federal Court of Justice)
The legal concept of “wrongful life” is extremely controversial and has been rejected by a number of courts around the world. It is usually invoked when a baby is born with severe birth defects. The parents sue the relevant doctor for not having informed them about their child’s disability and thus giving them a chance to abort the child.
However, a case in the German courts highlighted in the Journal of Medical Ethics used the idea at the end of life.
In April 2019, the German Federal Court handed down a decision about potentially unlawful clinically assisted nutrition and hydration (CANH) for a patient suffering from dementia who was being fed through a tube in his stomach. His son tried to persuade his father’s doctor and the nursing home to remove the PEG without success. The man died in 2011 of pneumonia.
Eventually the son sued for damages, alleging that failure to discontinue CANH caused prolonged suffering. He asked for €100,000 in compensation for suffering and €50. 000 as indemnity.
The case worked its way through the courts. Eventually the Federal Court ruled last year that that there was no non- pecuniary damage. It stressed the fact that no act or omission by the doctor could have improved the patient’s life at this stage. Hence, the alleged damage was life itself. It concluded:
no third person is entitled to a judgement about its value. It is therefore unthinkable to consider life—even survival afflicted with suffering—as a damage.
The authors of the article conclude:
The court’s refusal to grant damages for survival should not be interpreted as contradictory to the prevailing doctrine that withholding/withdrawing of [life-saving treatment] is appropriate in specific cases. Rather, it marks a boundary to this tenet.
Ideally, the verdict would lead to a stronger focus on advance care planning, since one central problem in the present case was the impossibility to infer the patient’s wishes and the lack of conversation between the family, guardian and health professionals.
Michael Cook is editor of BioEdge
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