The sole heir of a deceased man was awarded compensation by the Munich Higher Regional Court in connection with his artificial feeding by means of a PEG tube against the family doctor treating him.
In the dispute now being dealt with, the patient’s family doctor was responsible for the artificial feeding of the man under his care in 2010 and 2011. According to the plaintiff, this was no longer medically indicated from the beginning of 2010 at the latest. It had led to a pointless prolongation of the patient’s illness with no prospect of improvement in his state of health.
The Higher Regional Court agreed with this view of a breach of duty on the part of the defendant. “As the attending physician of a patient who was no longer capable of giving consent, he would have been obliged to discuss the continuation of PEG tube feeding in the stage of terminal dementia or its termination with a change of the treatment goal to purely palliative care with the consequence of the patient’s imminent death particularly thoroughly with the caregiver. Such an in-depth discussion with the caregiver was indisputably not held here, i.e. also according to the defendant.” (Press release 91/2017 of the OLG: https://www.justiz.bayern.de/gerichte-und-behoerden/oberlandesgerichte/muenchen/presse/2017/91.php)
The Humanist Association welcomes this ruling. Erwin Kress, member of the Federal Presidium and longstanding spokesperson on the subject of autonomy at the end of life: “We welcome the fact that doctors will in future be obliged to point out unreasonable prolongation of artificial nutrition on their own initiative. Such cases of senselessly suffering dementia patients are a sad reality in geriatric care. Obtaining compensation for an unbearably endured life is uncharted territory in Germany. However, this lever is obviously necessary in order to finally establish an alternative, namely palliative care in nursing homes.”
Erwin Kress, spokesman for the HVD Federal Association on the subject of autonomy at the end of life.
Photo: © A. Platzek
The plaintiff was represented in court by the well-known Munich lawyer Wolfgang Putz. He has already won a number of groundbreaking judgments that have strengthened the legal position of patients. This applies in particular with regard to the large-scale prolongation of life through artificial nutrition.
This often makes medical sense in the case of a temporary condition. In many cases, however, artificial feeding by gastric tube (PEG) is prescribed without any prospect of improving the patient’s condition and often against their will.
