The Federal Court of Justice has awarded compensation to two patients who fell ill after receiving donated organs. The treating physicians had not sufficiently informed them about the possible risks, it said in the explanatory statement (file reference VI ZR 318/17 and others).
The current case concerns two kidney donors from Lower Saxony and North Rhine-Westphalia, who had been diagnosed with renal insufficiency or chronic fatigue syndrome after the procedure. They reproach the University Hospital Essen for errors in risk education. One of the donors said that he had decided to completely clear the procedure.
The lower courts had rejected the lawsuits. Although they found errors in the explanation of risk, for example, the prescribed neutral doctor was missing. However, the judges were convinced that the plaintiffs would have agreed to donate even if they had been informed of all risks.
Unlawful interference
The Federal Constitutional Court contradicted this argument and canceled the preliminary decisions. "Thus, the consent given by the plaintiffs in the organ removal is ineffective and the intervention in each case unlawful," it says in the statement of grounds of the court. Now the Higher Regional Court Hamm has to decide again on the extent of damage.
In addition, the judges stressed the importance of comprehensive education. "Compliance with the provisions of the Transplantation Act is an indispensable prerequisite if people's willingness to donate organs is to be promoted in the long term," argue the judges.
The case from Lower Saxony is about a businessman and family man who had donated a kidney to his wife in the summer of 2010. The now 54-year-old Ralf Zietz has never fully recovered from the operation. Among other things, he suffers from impaired kidney function and chronic fatigue. (Here you can read more about it).
Zietz demanded: "The donor has a right to comprehensive, ruthless, even the smallest risks comprehensive education.Only one hundred per cent enlightened, the donation should be allowed." He hopes that the procedures will raise public awareness of the risks of a living donation.
When is a live donation allowed?
A living donation is only allowed among related persons. In 2017 there were 557 transplants after living kidney donations in Germany. One reason for a living donation is also the still low readiness for organ donation after death, even though the number of organ donors has recently increased again.
Health Minister Jens Spahn (CDU) wants to further increase the number of organ donors. He calls, for example, a double contradiction solution. Accordingly, everyone automatically counts as a donor who does not object to it during his lifetime. If in doubt, relatives should be able to make the decision.
Possible risks
Before a live donation, doctors are required to inform the donors about possible risks. There must also be a second doctor present. A commission also verifies that the potential donor is acting voluntarily and is not being pushed to donate, such as psychological pressure or financial incentives.
After the donation, complications may occur for both patients. For example, infections or problems with the scar are conceivable. It is also possible that the body rejects the donor organ. The donors also run the risk of contracting the remaining kidney and therefore require dialysis or the person concerned is dependent on an organ. However, such complications are rare according to the German Foundation for Organ Transplantation (DSO).