Formal errors in medical education do not make organ donation unlawful

OLG Hamm: medical assistant were aware of risks of kidney donation
If patients are not properly informed about organ donation for live kidney donation for formal reasons, the removal of the organ has not yet been unlawful. This has been clarified by the Higher Regional Court (OLG) Hamm in a judgment published on Friday, October 28, 2016, and dismissed the claim of a medical assistant for damages and compensation (Ref .: 3 U 6/16).

The Dortmund native had decided in 2008 to donate a kidney to her father. The man suffers from an incurable kidney damage. The daughter feared that her father would be dialysis-dependent or even die from his illness.

(Image: s_l / fotolia.com)

The doctor's assistant received a written patient information after her donor request, the Commission Transplantation Medicine of the North Rhine Medical Association also found that the woman would voluntarily donate a kidney.

At the end of January 2009, she was finally informed by the enrolled clinic in Essen of several doctors about the procedure.

But the live kidney donation was different than expected. In May 2014, the father lost the kidney transplanted by his daughter.

Also for the daughter, the transplantation was not without consequences. She states that she is now suffering from fatigue syndrome and kidney weakness. From the doctors of the hospital, she demanded compensation, including a compensation for pain in the amount of 50,000 euros.

She was not formally correctly informed about the consequences and risks of organ donation according to the Transplantation Act, she complained. So there is only a discussion protocol for the discussion, which she and her father have signed.

The legal provisions would provide, however, that the doctor also certifies the enlightenment with his signature. Leading nephrologist was also involved in the conversation. However, the participation of an independent doctor is mandatory. Due to the lack of medical education, she was unable to consent to the intervention correctly.

However, the OLG saw this differently in its final judgment of 7 September 2016. Indeed, the alleged procedural defects actually existed. There are also doubts as to whether the lead nephrologist should have participated in the discussion. Therefore, an organ removal will not be unlawful, so that it can not be assumed that the consent of the donor is ineffective, the Hammer Richter emphasized.

In this case, the hypothetical consent of the plaintiff can be assumed. Because the woman had stated that she had decided to donate live because she feared the death or the dialysis obligation of her father. As a medical assistant she was also aware of the significant risks and limitations in her quality of life. Therefore, it can be assumed that they would have decided on a sufficient education for donation, the OLG ruled. fle