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Not Transplantable due to husband's email
Karlsruhe (jur). In the opinion of a false classification in the report on the Eurotransplant waiting list for donor organs, patients should seek immediate legal protection. Because if the desired organ is transplanted at another transplant center, the dispute with the first center has ended, as the Federal Constitutional Court ruled in a resolution published on Friday, August 12, 2016 (Ref .: 1 BvR 1705/15) , Only possible claims for damages can be clarified before the civil courts.
The initial case is spicy, but had to be decided after the Karlsruhe decision because of lack of legal interest.
Image: Kadmy - fotolia The plaintiff needed a new kidney and therefore turned to a transplant center in Munich. Because she and her husband also considered a live donation of a kidney of the man, he went to the consultation with. The couple was dissatisfied with the talks. In particular, they had not learned why the Munich doctors refused a living donation. Blood samples taken for clarification were not even examined.
The man vented his anger with an e-mail to the kidney transplant surgical director. The e-mail concluded with the sentence: "I assume that I do not have to turn with the answer to my questions to the clinic management or the Kassenärztliche union or similar."
In a reply, the doctor rejected the "blatant threat." A trusting treatment of the wife was apparently not possible. For this reason, he will report to Eurotransplant as "non-transplantable".
The kidney-sick woman felt thereby unjustly punished for the behavior of her husband. For months she tried to clarify with the Munich center and eventually moved to court. In her complaint, she claims that her classification as "non-transplantable" was unlawful.
She also went to another transplant center. There she was immediately addressed to the Munich classification. After clarification, the second center enrolled the woman at Eurotransplant, and she was able to get a donor kidney.
This happened before the trial at the Munich Administrative Court. The court therefore dismissed the action as inadmissible. There is a lack of legal protection and determination, because the woman has now received a donor kidney. The Bavarian Administrative Court (VGH) in Munich had confirmed this.
This was followed by the Federal Constitutional Court. It did not accept the woman's complaint for decision. A "worthy interest" is no longer available.
The justification given by the Karlsruhe judges was that citizens could only demand legal protection if an interference with their rights continued or continued, or if there was a risk of recurrence. Because the woman has since gotten a new kidney, divorced these reasons.
In other cases, courts could exceptionally grant legal protection if the procedure usually lasts only so briefly that in the meantime legal protection can not be obtained at all. But that does not apply here too. The woman had sought months to clarify with the Munich center and then submitted only a lawsuit and not a request for urgent decision.
It does not matter that it is still a matter of debate whether the administrative courts or the civil courts are responsible for disputes of patients with transplant centers. At least in urgent proceedings, the courts are also then held to decide quickly.
As far as the woman wanted to demand damages from the center of Munich, she could do so directly with a civil action. If necessary, it should also be considered whether the classification as "non-transplantable" was justified. A decision on this in advance is not required, it says in the now published written decision of 6 July 2016. mwo