Can life be considered as a loss under the civil law of damages? Thoughts based on a decision of BGH in Germany

by George Kazoleas, Lawyer LL.M.

The majority of lawsuits against doctors allege medical errors that resulted in the death of patients or in other cases the deterioration of their health. A lawsuit filed a few years ago against a doctor in Germany involved an accusation against him of the opposite: That the doctor was responsible for prolonging the patient's life while he should have ended it.

Facts of the case

The patient, born in 1929, had been suffering from a dementia syndrome since 1997 and until his death in 2011 was under the supervision of an attorney, which included both his health and personal care. Since 2006 the patient has been living in a nursing home. During his stay in hospital in September 2006, he became ill due to malnutrition and with the consent of the lawyer, a catheter was inserted into him, through which he was artificially fed until his death.

The defendant, a general doctor, began to care for the patient in the spring of 2007. The patient’s health deteriorated as of 2008 resulting in the loss of his ability to communicate. Since 2010, he had difficulty in breathing, while he was also suffering from increased blood pressure and pneumonia.

It is noted that the patient had not drawn up a will or expressed his will regarding whether he wished to remain alive with the use of life mechanical support or not.

The person suing the doctor was the patient's son, who claimed that the serum feeding was not medically indicated from early 2010 onwards, and was not affirmed by the patient and also that the supervising attorney was not informed. Instead, the plaintiff argued, feeding his father through the serum led to an unreasonable prolongation of his illness with no prospect of improvement in his health condition.

Therefore according to the plaintiff's claims, the defendant doctor was obliged to change the treatment goal in order to allow the patient to die under palliative medical care by terminating the serum feeding. He even argued that by continuing the serum feeding and continuing the pain and suffering, the patient's body and his personality rights had been violated.

Therefore, the plaintiff requested compensation for non-material damages,  in addition to the treatment and care costs incurred during the period in question, amounting to 52,952 euros, which would not have been incurred without the treatment beeing followed by the defendant doctor, as in this case, the patient would not have lived.

The Court of first-instance dismissed the legal action, however the court of appeal awarded compensation for non-material damages of €40,000 by also holding the dismissal of the pecuniary damages claim by the Court of first instance. The important thing in the appellate judgment was that the extension of life under these very difficult conditions could be the subject of damages in the sense of civil law.

The decision of  BGH dated 2.4.2019

The Federal Court of Germany, however, rejected the plaintiff's claims against the doctor. From the rationale of the decision, it is interesting to focus on the finding of the Court that in this particular case the conditions for the award of compensation do not exist, since according to the compensation law, in order to determine the damage, the actual situation must be compared with the situation in which would have existed if the damaging event had not occurred.

Here the condition of continuing life under the particular difficulties with artificial nutrition is contrasted with the situation that would have existed if artificial nutrition had been discontinued, namely death. Actually, there was no option for the patient to continue living without or with less suffering.

"Human life is an invaluable good of absolute protection", the Court mentions and continues that "no third party has the right to judge its value. Therefore, it is forbidden to regard life - even suffering existence - as a loss.'

Therefore, according to the Court of Karlsruhe, from the continuation of a patient's life with supportive means, no liability for compensation for pain and suffering can arise.

The Court points out that although the German Constitution prohibits treating human existence as "damage" in the sense of civil law, it is not excluded that the financial burden associated with human existence may be considered as material damage, under certain circumstances.

One similar example, from the jurisprudence of the Court, is the case of the financial burden on the parents caused by the birth of a disabled child due to a medical prenatal error. In this case, the cost of maintaining the child may constitute a loss that is subject to compensation.

But in the particular case of the elderly patient, the Court considered that the purpose of the obligation to inform about life-sustaining means was not to avoid the specific financial burden borne by the patient's son, and for this reason the Court rejected the claim both for medical and pharmaceutical expenses (material damage).

The decision of  BGH, expressing in an absolute way the protection of human life, even that which has become torturous and is done with medical assistance, as a supreme good, caused intense debates and criticism in the legal world of Germany. The peculiarity of this case was that there was no expression of the patient's clear and explicit will as to whether he wished to continue his life under the specific conditions and this because the patient was no longer able to give his consent or not to hasten his death.  Otherwise, the judgment of the Karlsruhe Court would certainly have been different.

However, as it appears from the history of this particular case, there were no previously expressed wishes or perceptions of the patient regarding such a situation, nor did the supervising attorney entrusted with his care, disclosed any information from which it could safely be inferred that the patient would consent to not continuing his life. But neither his son claimed that his father had expressed such a will in the past.

Furthermore, the period of time between the rapid deterioration of the patient's state of health and his death (i.e. from the beginning of 2010 until October 2011) cannot be considered disproportionately long in relation to the application of the supportive measures decided by the attending doctor. Thus, a possible finding of compensatory liability of the doctor under the specific circumstances would potentially lead to an unfair result.

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George Kazoleas, Lawyer

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