Can a patient refuse a blood transfusion

Decisions of the Higher Regional Courts, Munich Higher Regional Court 2002

Munich Higher Regional Court, judgment of January 31, 2002, 1 U 4705/98

Keywords: blood transfusion if the patient expressly refuses, Jehovah's Witnesses

Guiding principle (official):

1. Blood transfusions against the express refusal of the patient capable of consent are fundamentally inadmissible from a legal point of view, even if the patient puts his life or certain death in danger without such a transfusion and accepts this Can possibly lead to claims for damages.

However, if the doctor confronted with a corresponding partial decree of a Jehovah's Witness is allowed to assume after careful examination that the administration of blood would not be necessary when starting treatment, a situation arises later in which the patient's life can only be sustained by the supply is to be obtained from foreign blood, the doctor is not required in every case to follow the clear advance directive, even if it contains an exemption clause for him.

According to the principles of freedom of conscience, a patient's claim for violation of their personal rights through the administration of blood transfusions can at least fail because the doctor is not at fault.

In such a case, the granting of compensation for pain and suffering also requires a substantiated statement of the nature of the patient's trauma caused by the blood supply. The preservation of the patient's life may have to be taken into account in the context of benefit sharing.

2. If the oxygen supply of an intensive care patient is endangered by sepsis and blood loss, the administration of blood should be based on a target value of at least 10% hemoglobin with a generous interpretation of the transfusion criteria. In the unstable, life-threatening situation of such a patient, the doctor is not obliged to clarify whether this is vitally indicated before each individual blood transfusion.

Decision text:

Reasons

The plaintiff's appeal is admissible but unfounded.

As the regional court has already recognized with largely correct reasons, the plaintiff is not entitled to any (material or) immaterial, current or future claims against any of the defendants because of the disputed treatment.

I.

The plaintiff was adequately and effectively informed before the pelviscopy of 07/07/1992.

In the written declaration of consent signed by the plaintiff on July 6, 1992, which is undisputed, it only states that the risks are as follows: "I have been advised of possible, rare complications that may arise in connection with the operation, as well as other measures that may become necessary". An explanation of the risk of intestinal perforation, even if it might seem obvious from the written text, does not yet result from this.

However, the defendants have provided the corresponding evidence with the testimony of the witness.

The Senate shares the evidence given by the first court. The witness, who also showed an equally good as well as comprehensible and credible memory in the context of the counseling and clarification of the plaintiff, has stated that in the informative discussion with the plaintiff the possible complications with one surgical intervention, namely thrombosis, embolism, the possibility of a body incision, especially in previous operations, as well as the possibility of injuring neighboring organs in connection with the operation as a whole. The Senate has no doubt that this, as well as the other testimony of the witness, according to which she routinely mentions the possibility of ureteral, bowel and bladder injuries in ovarian operations, is true. It is coherent and credible if the witness states that she follows a fixed scheme during her informational interview that also includes information that neighboring organs can be injured during the pelviscopy. B. the intestine could already be injured by the puncture.

The fact that the information on the risk of perforation is not already recorded in the written declaration signed by the plaintiff does not contradict this. The general written form of the declaration of consent does not list any specific risks, whereby one might be tempted to draw the conclusion from the lack of further risks that the risks not contained in the sheet have not been clarified been. Rather, the pre-formulated text only speaks generally of possible rare complications. Depending on the requirements, this can be filled out. The witness's testimony shows how this happened in a way that convinced the Senate.

The Senate's conviction that the plaintiff has been properly informed and that the risks in question have been pointed out is not called into question by the plaintiff's own statement. The plaintiff, who was personally heard by the chamber, had not entirely denied any information provided by the witness, but merely stated that she could not remember that she had spoken of the possibility of an intestinal injury has been. Also that the plaintiff, in order to underpin a lack of clarification, as a very anxious person, as she claims, would have waived the operation and would have gone home if she was at risk of one Would have known intestinal injury, as ultimately only an afterthought and attempted explanation by the plaintiff does not speak against the testimony of the witness Dr.

It is by no means the case, as the plaintiff thinks, that a non-liquet situation has arisen for the Senate in which two equally valid contradicting statements confront each other without one or the other being able to be followed. With the consequence that the defendants would not have provided evidence of a proper explanation of the plaintiff. There is currently no non-liquet situation. Like the Regional Court, the Senate also follows the information provided by the witness Dr. to which the plaintiff could not counter anything decisive.

Insofar as, for which there is nothing decisive, parts of what was remembered by the witness should be based on the fact that the clarification conversation with her always proceeds according to a certain pattern, what the Federal Court of Justice already applies in its decision of January 8, 1985 (VersR 1985 , 361) has carried out: "If there is some evidence of a conscientious informational discussion, the doctor should be believed, in case of doubt, that the information was provided in the appropriate manner in individual cases; this also taking into account that for a variety of understandable reasons In retrospect, patients do not remember the exact content of such conversations, which for them were primarily of therapeutic importance. "

II.

The accusation of incorrect treatment of the plaintiff can neither be raised in connection with the pelviscopy of 07/07/1992 nor in connection with the subsequent follow-up treatment of the plaintiff, including further operations.

Insofar as the plaintiff repeats her lecture on these points from the first instance in the appeal, she again closes herself off the clear expert statements of the expert professor with distorting interpretation. As far as there was still a need for clarification for the senate, this was through the expert opinion of the expert Prof. is sufficient in a way that refutes the allegations of the plaintiff.

1.

Her assumption, expressed in the course of the legal dispute, that the intestine was perforated because the as yet inexperienced assistant doctor had pelviscoped her and this was inadequately supervised by the second defendant and the other doctor present, has the The plaintiff was finally no longer upheld after the defendant - which remained undisputed - named the second defendant as the one who, as an experienced chief physician, carried out the pelviscopy himself.

There is nothing to suggest that on the occasion of the pelviscopy of 07/07/1992 the perforation was incorrectly treated and not as a realized immanent risk, and the plaintiff was unable to submit anything. It remains to be noted what the expert Prof. has said that such injuries can occur in the course of detachment of intestines on the genitals, even with careful dissection by laparotomy and laparoscopy.

In addition, it has not been proven in any way that the defendants fatally caused the perforation and then allegedly did not notice it during the pelviscopy. In view of the findings in the plaintiff's case, according to the expert Prof. the most likely to be a so-called secondary perforation due to anemic necrosis. The perforation is to be expected after 24 hours at the earliest; However, according to the expert, in the present case it could only have taken place after 72 hours.

2.

The allegations made by the plaintiff in connection with the further recognizability and the eventual recognition of the perforation as well as the peritonitis that occurred and the subsequent treatment steps are unfounded.

a)

The defendants did not recognize the perforation and the peritonitis too late. During the period between the pelviscopy on 07/07/1992 and the first laparotomy on 07/12/1992, the plaintiff was properly cared for and treated.

According to the expert Prof., it is completely questionable whether the peritonitis could have been detected earlier on the basis of the laboratory values ​​before the fourth postoperative day. Judging the clinical picture of the perforation in its entirety, according to the expert, was only properly manifest on the fifth postoperative day.

If the expert professor of a "delayed detected intestinal perforation" speaks, this is precisely not how the plaintiff undertakes to interpret it in the sense of an accusable delay. From the overall context of the expert statements it rather emerges with sufficient clarity that the intestinal perforation may have been present earlier than recognized, but was not immediately recognizable when it occurred.

According to the expert, the postoperative follow-up observations were carried out carefully. Medical misconduct cannot be inferred from this in any way. In particular, the claim of the plaintiff is unfounded, an unclear abdominal condition between the 8.7. and 11.07.1992 could have been clarified by a stage lavage or a contrast enema in the large intestine. As the expert Prof. has pointed out, these treatment methods are not suitable for diagnosing intestinal perforation or peritonitis, rather they would have only worsened the subject. The Senate agrees.

b)

The defendants did not intervene too late after recognizing the perforation. According to the statements of the expert Prof., neither the laboratory values ​​nor the circulatory parameters of the plaintiff result in an indication for an earlier intervention than it actually took place.

Even if the expert states that a decision to have a laparotomy could have been made on 07/11/1992, although this is ultimately questionable, this does not mean that a decision that was only made and implemented on 07/12/1992 was not the case would be wrong. The expert Prof. has expressly ruled out medical misconduct, particularly in view of the careful follow-up observations she has made on the plaintiff, as they are also documented. The expression of the repeatedly used by the expert "can" always incorrectly interprets the plaintiff as a "must". In doing so, however, the plaintiff merely sets her own evaluations instead of those of the experts.

c)

Even if one were to consider a slightly late laparotomy to be a mistake, which the expert Prof. and, following her, the Senate expressly rejects, this would in any case not be a gross mistake. From the statements of the expert Prof. it cannot be inferred in the slightest that a conscientious doctor should absolutely not undermine this. There would therefore be no room for a reversal of the burden of proof in favor of the plaintiff. Proof of a causality between a delayed performance of the laparotomy and the subsequent complaints or damage to the plaintiff would therefore continue to be incumbent on the plaintiff. She did not provide this proof. According to the expert Prof., it can only be speculated whether such an earlier first laparotomy could have prevented the creation of an anus pretension, the subsequent bleeding and the sepsis. This is completely uncertain.

d)

The medical statement submitted by the plaintiff dated January 10, 2001 (on p. 298 of the file) does not give rise to any other assessment either here or in an assessment of the other events. The expert opinion of the private expert Prof. anesthetist and intensive care physician is refuted by the court expert. For this reason alone, the submitted private report proves to be of little use; because the expert, as he himself states, did not have detailed data from the clinic documentation (patient file, etc.). The expert's report, however much he saw himself prompted to accuse the regional court of bias, does not go further and, in particular, does not call into question the expert's statements.

Overall, the Senate agrees with the findings of the expert Prof. who, after carefully evaluating all the findings on the basis of applicable connecting facts, reasonably, consistently and convincingly substantiated all the arguments presented in every respect. It should only be noted in passing that the plaintiff, prior to submitting the expert opinion, certified Prof. the latter herself, "an excellent reputation as a specialist in gynecological pelviscopy and laparoscopy" to enjoy.

To obtain a specialist medical opinion from a "laparoscopically experienced general practitioner", as requested by the plaintiff in a brief dated January 22, 2001, there was no reason whatsoever.

3.

In connection with the procedure of July 21/22, 1992, the defendant cannot be blamed for any incorrect behavior.

a)

From a layman's point of view, it may seem spectacular at first glance when a patient in the intensive care unit loses a liter of blood by the time it is noticed.

However, the facts are to be specified here in a way that in no way leaves the thought of incorrect medical behavior or inadequate supervision.

The expert Ms. Prof., the experienced chief physician of a department for anesthesiology and operative intensive care medicine at a large clinic, dealt with by the Senate, in accordance with a justified demand of the plaintiff, with the questions that are somewhat beyond the specialist field of the expert Prof. , has already stated in its first written report that the monitoring of the plaintiff was carried out according to the usual criteria of intensive care medicine. The fact that the postoperative monitoring of the plaintiff in the intensive care unit was carried out according to the criteria of the intensive care medicine that was customary at the time with the corresponding parameters on the intensive care curve and in the care protocol was also recorded by the expert in the subsequent period without any compromises.

According to the expert Prof., it is not possible to determine exactly when the intra-abdominal bleeding began from the clinical course.Taking into account the specific circumstances, a cause of bleeding for the established circulatory instability of the plaintiff did not necessarily have to be considered. According to the operation report of July 22, 1992, it can be assumed that a large amount of blood initially accumulated in the retroperitoneal space ("You can see a lot of clot in the retroperitoneal area") and only appeared to the outside world some time later. According to the expert Prof., there is no reliable indication from the course described that the postoperative bleeding should have been recognized earlier on the night of July 21st to July 22nd, 1992.

b)

Waiting three hours after recognizing the loss of blood at 7:00 a.m. until the laparotomy at 10:00 a.m. does not turn out to be faulty.

In this regard, the expert Prof. had already stated in the first instance that an earlier decision to operate on July 22nd, 1992 may have been justified. However, intensive observation of the patient and the administration of blood transfusions can also be described as medically correct. This expert also expressly regarded it as understandable, since the plaintiff had already had two laparotomies behind her, that the defendant's doctors were cautious about the decision to have a third laparotomy in the event of bleeding and only when it was no longer possible to breastfeed Bleeding would have decided to have a third laparotomy.

These statements are confirmed by the expert statements of the expert Prof., who first made it clear that it must be noted in relation to the written recorded amounts of blood in bed that exact amounts of blood loss in bed can be very difficult . Relatively small amounts of blood added to larger amounts of serous fluid could easily be overestimated in their amount.

The expert also explained that not every postoperative bleeding must or can be repaired surgically. In addition to the punctual, surgically easily sanitized bleeding, there are severely inflamed, vulnerable tissue such as B. in peritonitis, diffuse secondary bleeding, which could not be satisfactorily influenced by a surgical intervention. If severe sepsis is also present, according to the expert Prof. diffuse bleeding could be aggravated by the pathophysiological consequences of sepsis (e.g. coagulation disorder). An unnecessary re-intervention in such situations could also endanger the patient.

Therefore, according to the expert, treatment and observation over a limited period of time with simultaneous treatment of the shock and the coagulation disorder and a time-limited wait while switching off the heparin supply, substitution of coagulation factors and was justified in the case of the plaintiff The attempt to stabilize the circulatory system through blood transfusions and plasma protein solutions / plasma substitutes can be justified in the present case.

After the plaintiff's worsening circulatory system it became apparent that the bleeding situation could not be managed conservatively, according to the expert Prof. the plaintiff was specifically brought out of the circulatory shock and put into one Brought to transport and operational condition. At the same time, preparations were made for the re-intervention.

Even these statements of the experts rule out, to the conviction of the Senate, an incorrect medical procedure in the hospital of the defendant. As far as the expert Prof. also stated, when evaluating the timing, the aspect of the time of the complication must also be taken into account: the secondary bleeding was discovered at a time when the night duty regulations were still in force in all departments of the clinic; it is therefore possible that, understandably, a little more time was required for the necessary preparations and for bringing up the employees than would have been the case during the day with a full occupation, if this no longer played a role in the assessment.

c)

The accusation made by the plaintiff that a circulatory balance could have been achieved through the allocation of highly effective volume substitutes or hemodilution has also been refuted by an expert. According to the expert Prof., volume substitutes can only compensate for a volume deficit, but not a hemoglobin deficit, since they are not able to transport oxygen to the tissues without erythrocytes. In addition, there are maximum quantities for their intake which, if exceeded, can lead to side effects. The administration of larger amounts of plasma substitutes, according to the expert Prof., could have almost compensated for the volume loss caused by the bleeding, but probably not an impending tissue oxygen deficit and an additional coagulation disorder could not have prevented Can. The transfusions of several units of blood were therefore urgently needed and probably life-saving.

According to the expert Prof. further, a hemodilution was by definition contraindicated in the context of an existing emergency bleeding and Hb values ​​of 5 g%, as was the case with the plaintiff on 07/22/1992.

4.

The plaintiff cannot derive any claims from the administration of blood transfusions, insofar as they have already taken place since July 13, 1992.

a)

The first question to be clarified here was whether the measures taken in the administration of rhesus-positive as well as rhesus-negative blood, since in any case allegedly not indicated and the plaintiff was harmful and incorrect in treatment.

aa)

The taking of evidence before the Senate has shown through the written reports of the experts as well as through their oral hearing in a manner excluding any doubt that the administration of blood reserves was vitally indicated at the plaintiff at all times.

The statement of the plaintiff that the defendants had wrongly based on an allegedly critical hemoglobin value of 10 g%, which, however, has been proven to indicate no danger to life, has been refuted by the expert.

According to the expert Prof., the decision on blood transfusion must be based on a synopsis and evaluation of multiple clinical parameters and accompanying circumstances. When weighing up the transfusion, other factors that she mentioned in detail had to be taken into account in addition to the Hb / Hk value. Many of these factors are impaired per se in intensive care patients. Therefore, a generous interpretation of the transfusion criteria in intensive care patients is recognized and customary. The corresponding literature data on postulated Hb / Hk values ​​in septic patients would range between 10 g% / 30% and 12 g% / 35%. This assessment would be based in particular on the consideration that septic patients have an increased need for oxygen, but their ability to compensate is limited. For this reason, so the experts, every effort should be made to optimize the oxygen supply.

According to the experts, whether an Hb value below 10 g% should be rated as critical depends on the circumstances. Since the plaintiff in the present case was in a state of florid, protracted sepsis, an Hb value below 10 g% in this situation - if not critical - can at least be described as borderline. According to the expert, an Hb value must not only be raised to avert acute danger to life, but also to avert further slowly developing damage to patients, such as B. the development of multiple organ failure in sepsis as a typical serious complication. "We go", so the expert Prof. "Even today we assume that if the oxygen supply to the vital organs and peripherals is endangered by sepsis and blood loss, the administration of blood should be based on a target value of at least 10 g% hemoglobin for the safety of the patient".

On the basis of the treatment documents and the values ​​continuously measured and documented by the plaintiff, the expert further stated that the main reason for the Hb drop on July 13, 1992, besides the slight loss of blood during the operation, was above all the significant specific volume requirement was in acute sepsis. At an Hb value of 6.8 g%, according to the experts, the adequate oxygen supply to the tissue in the septic patient was at risk. While the situation on July 21/22, 1992 was life-threatening, on July 13, 1992 a critical situation with unstable circulation and a septic-toxic condition gradually developed. According to the expert, however, it had to be assumed that the patient with the existing septic-toxic clinical picture would not be able to raise this low Hb value in a short time by producing new erythrocytes. On the contrary, a further deterioration in the situation was to be expected. A further drop in the Hb value was to be feared. The noticeably low value of the total protein also had to be taken into account. Not to be forgotten are the daily blood losses in intensive care patients due to blood withdrawals for laboratory value determinations, which in total cause the Hb value to drop very slightly but steadily. In this situation, according to the expert Prof. with rapidly falling Hb values ​​in an already poor circulatory situation and no real chance of rapid spontaneous improvement, the administration of blood was indicated. The resulting Hb value of 10 g% on the evening of July 13, 1992 was adapted to the situation and was beneficial to the patient overall. According to the expert, a transfusion was also justified on July 15th, 1992 in view of the sepsis with an Hb value of 9.4 g%. For July 20, 1992, the expert stated that a further decrease in the Hb value to below 8 g% was to be assumed with a clearly falling tendency. This justified the transfusion.

The expert Prof. confirmed her written statements in her oral hearing by first stating that according to the current intensive care standard, the treatment of the plaintiff was absolutely correct. To illustrate this, the expert also clearly noted the following: "In the acute phase the patient would have died if she had not received the 14 cans of blood. The acute phase was on July 21st and 22nd, 1992. As far as we know, she would have died during this time without blood I believe that on the 13th, when the patient had a hemoglobin value of 7.9 g% in the morning and 6.8 g% in the evening, it was feared that she was in acute danger After the allocation of 3 cans, the value had risen to 10.1 g%. " The expert also stated: "This patient would have died without blood, as far as one can say today. According to the medical judgment, it must be assumed that the patient would not have survived the complications without a blood transfusion."

The claimant that the defendant had before every single blood transfusion administered to her, and to a certain extent before every single drop, the expert has the claim of the plaintiff, which can only be qualified as presumptuous by the Senate, even with due respect, and which thoroughly misunderstood the requirements of medical action for the time outside of the acute phase on July 21st and 22nd, 1992 and oriented on July 13th, 1992 responsibly as follows: "Whether it was really vital cannot be answered with yes or no with the restriction to this day. One had to assume, however, that she is extremely endangered. She was a ventilated patient with sepsis. The situation was life-threatening because she was in a condition where further transfusions could be necessary, which has been shown. You can only leave such an Hb value if the situation is stable. It wasn't. If you the patient would have left that way and things would have gone wrong had this been considered absolutely wrong from a medical point of view ... The patient would have died without blood, as a doctor would do in the situation, can you only answer when you are in the situation yourself and have to act. The medical art is dealing with uncertain knowledge ... If the blood had not been given between July 13th and 20th, it would be Patient probably in the acute phase with such a never Gone low hemoglobin that probably couldn't have been done. "

As far as it can be discussed, according to the experts6, that about one or two cans of the 0-rhesus-positive series are not absolutely necessary, one must take into account that in such an emergency situation the assessment of whether one or two cans still needed or not, is almost impossible.

The Senate fully agrees with this, with the conviction that according to this, the administration of blood to the plaintiff was vitally indicated at all times.

bb)

The administration of 7 cans with rhesus-positive blood to the plaintiff, who actually has rhesus-negative blood, was not faulty either. In this regard, the expert Prof. stated that the plaintiff was in a severe bleeding shock and could only be stabilized by giving several blood products. Since the situation was threatening, if there was a supply bottleneck, it was necessary to fall back on canned products of the blood group 0-rhesus-positive, which at the time of administration did not pose a risk to the patient, but served their safety, bottlenecks at 0 -Rhesus-negative canned food, the experts said, would occur again and again, as they can be given immediately to practically any emergency patient. The award of rhesus-positive canned food in the case of the plaintiff was not a medical misconduct, but a situation-related necessity, the possible consequential problems of which would have had to be accepted under certain circumstances. According to the expert, the theoretically possible risk to a child in the event of a later pregnancy of the plaintiff was also ruled out, since the plaintiff had already been sterilized by a tube.

cc)

It has already been stated that the plaintiff's anemia could not be countered by volume substitutes or hemodilution. The expert Prof. has expressly referred the presentation discussed above under point 3 c to the period from July 13, 1992 onwards.

dd)

If the administration of blood to the plaintiff did not constitute a treatment error, the plaintiff was furthermore - apart from the religious ideological problem to be dealt with separately - at least not damaged from a purely medical point of view.

aaa)

Insofar as the plaintiff still claims in the appeal that the sepsis she had suffered was a consequence of the blood transfusions administered to her, as these had put a strain on her immune system and thereby delayed the healing process, this is through the evidence refuted.

In all likelihood, according to the expert Prof. and to the best of her medical understanding, the sepsis was not caused by the administered blood transfusions. Without the blood transfusions given to the plaintiff, the healing process would have been longer and the sepsis would probably have been the same. According to the expert Prof., the transfusions had nothing to do with the septic process. According to this expert, they neither caused nor aggravated the septic process, but rather stabilized the patient's situation.

The expert Prof. says in the same way by stating that the case of the plaintiff was a severe protracted sepsis with fecal peritonitis as a result of a perforation of the large intestine with corresponding bacterial findings, which were already fully developed was when the plaintiff had the first blood transfusion. With regard to the question, according to the expert Prof.Whether the existing peritonitis with sepsis was negatively influenced in its healing time by the urgently required blood reserves, it should first be pointed out that all prospective studies mentioned by it (cf. expert opinion of 23.03.2000, page 14 with attachments) only after published in 1992. At the time of the incident, the expert said, the presumption of an association between blood transfusions and an increase in postoperative infection rates was purely hypothetical and in the present case did not need to be seriously considered. The claim that, according to the expert Prof. the healing process was delayed by the blood transfusions, is very unlikely, even based on current knowledge. It is much more likely that the timely supply of blood prevented complications in the further course of the disease in the severe septic clinical picture.

Apart from that, the plaintiff suffered no harm from the gift of blood. An acute incident during the transfusion of the rhesus-positive blood to the rhesus-negative plaintiff neither occurred nor was this to be expected because of the routine tests for acutely dangerous antibodies.

If, according to the experts, the administration of rhesus-positive blood to rhesus-negative women of childbearing age can be problematic if a pregnancy with a rhesus-positive child ensues, this is a fact which, as stated, also had no effects on the plaintiff as a result of her sterilization.

The problems after giving rhesus-positive canned food to rhesus-negative recipients would, according to the expert Prof., only develop in the course of further weeks and months. During this time, antibodies against the rhesus property could be formed, which could then trigger serious transfusion incidents (hemolysis) if another transfusion with rhesus-positive blood was carried out. However, no antibodies were measured on the plaintiff. The plaintiff, with reference to theoretical considerations, has not put forward this even today, almost 10 years after the disputed incidents.

bbb)

In so far as the plaintiff finally considers herself to be damaged by the administration of blood, because she is thereby generally exposed to the risk of contracting AIDS or other serious illnesses when using inferior or contaminated blood supplies, she is thus in the range total speculation. In this respect, the plaintiff has not submitted anything about concrete, verifiable effects. In the Senate's view, it should only be an exaggerated argument anyway.

ee)

The Senate considers the expert statements of the expert Prof. to be convincing in every respect. With regard to their scientific soundness, what was stated in connection with the expert Prof. Incidentally, in his brief report, the private expert Prof., who was tried by the plaintiff, remarked that from a factual and professional point of view, all in all, report J could not be objected to.

b)

If the plaintiff's blood treatment was not incorrect from a medical point of view and, moreover, without any proven impairment for the plaintiff, the administration of blood reserves is justified from the point of view of an interference with the general personal rights of the plaintiff as a witness J no claims for compensation, either on a contractual or tortious basis. (On the Jehovah's Witness problem, see also in detail Bender, Jehovah's Witnesses and Blood Transfusions, in: MedR 99, 260 ff).

aa)

It is based on the principle that a blood transfusion against the express refusal of the patient capable of giving consent is inadmissible from a legal point of view. This inadmissibility is based on the one hand on Art. 2 GG, which guarantees the patient's right to self-determination. This right to self-determination includes the ability to make a metaphysical decision based on irrational components (including throat, blood transfusion or blood products and Jehovah's Witnesses from the point of view of the judge; in: Obstetrics and Frauenheilkunde, 1994, M 126 ff ). Since the Jehovah's Witness makes his decision against a blood transfusion also for religious reasons, the free personal development of Art. 2 GG comes with the basic right of Art. 4 GG, which protects freedom of religion. In this regard, the Federal Constitutional Court (BVerfG 32, 98 (106)) has expressly stated that everyone has the right "to align his entire behavior with the teachings of his faith and to act according to his inner convictions". This means that if the Jehovah's Witness effectively refuses to consent to a blood transfusion, the general rule for the doctor to do so. This also applies if the refusal of a blood transfusion is completely unreasonable from a medical point of view and the patient and Jehovah's Witness puts himself in danger of death or certain death. Anyone who as a doctor, contrary to the agreement or under deception of his patient in an advisory conversation, accesses the blood reserve intraoperatively and infuses blood from another person, on the one hand, is generally violating his contractual obligations; In addition, he can also commit an unlawful act within the meaning of § 823 BGB, which can result in a claim for damages in the form of compensation for pain and suffering (see also Schlund, op. cit., M128).

bb)

The plaintiff is of the opinion that her correspondingly clear instruction has legally continued to exist at all times and takes the defendant to duty without ifs or buts, with the result that any blood transfusion thereafter is unlawful.

However, this cannot be accepted.

The principles outlined above need to be corrected and supplemented in this context, whereby the examination must be staggered in time, also taking account of the forward responsibility.

A doctor who is committed to his oath and professional ethics, in an effort to heal the sick, takes over the treatment of a person with knowledge of a patient decree, as it was made by the plaintiff, does not become a willless plaything of this decree, bar any à Medical conscience.

If a Jehovah's Witness expects a doctor who does not belong to this faith to undertake his treatment if necessary, and if he confronts him with his patient decree that refuses a blood transfusion, he cannot assume, even if his explanation should be clear, that the doctor In every conceivable case, the doctor would, as it were, machine-like adhering to it with the exclusion of his medical conscience and, if the worst came to the worst, let him die. Those Jehovah's Witnesses who, without any restriction, are seriously interested in dying for their faith if necessary and who also want to demonstrate this can be expected to join the so-called hospital liaison committees that exist for their religious community (cf. Bender, op. Cit., P.261) to be placed in the care of doctors who, without any reservation, bow to the religious imperative of Jehovah's Witnesses and who may also let such patients die. It is undisputed that this did not apply to the defendants.

However, a doctor who is not verifiably trustworthy in the sense of the Jehovah's Witnesses and who is committed to Christian principles, which should also be revealed to a Jehovah's Witness under the command of tolerance, cannot be obliged to present himself as a doctor at the time of admission Unproblematic treatment with the thought of accepting a lethal outcome of the treatment or operation if the worst threatening, but by no means expected risks are realized, if the blood transfusion is then prohibited, and then, if necessary, to act accordingly. This must also have been known to the plaintiff.

What a Jehovah's Witness can demand from the doctor, who is already showing some courage when he commences his treatment, is a conscientious examination of whether the intended treatment might require the administration of blood products.

If it is then clear from the outset that the procedure is absolutely essential for a blood transfusion, the doctor may not perform it if he does not want to behave illegally.

aaa)

This case undoubtedly did not exist when the plaintiff commenced treatment on 07/06/1992. The fact that a blood transfusion might be necessary as part of the pelviscopy was as good as ruled out and, in fact, never happened.

It can already be questionable - and is rejected by the Senate - whether the doctors in the hospital of the defendant 1) also had to think about it in the case of the rare when starting treatment in view of the fact that a Jehovah's Witness confided in them If the risk of perforation occurs, a blood transfusion could be necessary and how high this possibility should be assessed, such considerations did not need to deter the defendants from treating the plaintiff. As the Senate, which has been dealing with medical liability matters for many years, is by no means associated with every perforation, the requirement of a blood transfusion. The fact that this had developed in the case of the plaintiff was at least so far from the Senate's conviction at the start of treatment is due to the concrete, unforeseeable complications that the defendants did not have to take this into account when starting treatment and should have refused treatment in view of the plaintiff's declaration. On July 6, 1992, the doctors in the defendant's clinic could assume with a clear conscience that the plaintiff would not require any blood transfusions. No reproach can therefore arise from the start of the treatment of the plaintiff.

bbb)

The situation on 07/12/1992 cannot lead to an assessment in the interests of the plaintiff either.

On that day it turned out that in view of the values ​​measured by the plaintiff and the symptoms that had occurred, the laparotomy would be a vitally indicated procedure, as it was subsequently confirmed. The plaintiff, who might not have given any thought to the conflict of conscience she would bring the treating doctors into this situation, submitted a statement that was in any case - even if her life was threatened and unconscious the plaintiff - forbidden a blood transfusion.

At that moment the attending physicians were again confronted with the question of whether they should operate on the applicant under these conditions. The fact that they decided to do so, knowing all the circumstances, cannot substantiate an allegation against them.

The alternative to operating in the defendant's clinic was to quickly move a patient in critical condition to another hospital who had already been pelviscopied in the hospital there on 07.07.1992, and since then with worsening symptoms there has been continuously under intensive medical care. to find an operating co-believer for her who should have entered ongoing treatment.

The Senate does not consider it right in any way to instruct the defendants to act in accordance with this alternative in the specific situation. This in particular against the background that with the vitally indicated procedure there was at least a certain chance that a blood transfusion could be avoided. At the time of 07/12/1992 the decision between the blood transfusion and the death of the plaintiff was still purely hypothetical. From the medical point of view, it was assumed and could be assumed that the operation would do without giving blood transfusions. In this situation, the doctor must be allowed to operate on a patient, even if he cannot accept the idea of ​​abstaining from giving blood transfusions if necessary and, if the worst comes to the worst, of letting the patient seem to die as agreed.

ccc)

A new situation finally existed on July 13, 1992.

On that day, the defendant's doctors, whereby the main or sole responsibility for this may lie with the 4) defendant, began to transfuse the plaintiff's blood.

Contrary to the plaintiff's opinion, despite the plaintiff's contrary advance directive, the doctors were entitled to do so, since the plaintiff's advance directive was effectively overridden and just as effectively replaced by the consent of the authorized supervisor for the blood transfusion .

Even if the hospital and the defendant doctors had a patient decree from the plaintiff and a power of attorney issued by the plaintiff for a third party who, according to the facts, also belonged to their faith, from which it emerged that also in the event of the plaintiff's unconsciousness their declaration of intent not to receive blood transfusions under any circumstances should remain valid, in the specific situation on 07/13/1992 there was no binding for the defendant.

The documents handed over by the plaintiff to the medical files consisted exclusively of preprinted, freely reproducible text with regard to any statements contained therein, including extensive declarations, which also contained highly personal decisions of faith and conscience in apodictically prefabricated, no personal contained in a manner allowing for leeway. The only reference to the plaintiff was the entry of her name and address, date and signature with which she, over life and death, made the contents of the preprinted her own. Whether and, if so, in what cases, a doctor who is asked to treat an unconscious patient for the first time with the addition of this advance directive, can be required to adhere to it, provided he accepts the treatment not to be clarified here.

The present case is characterized by the fact that the patient's unconsciousness only occurred in the course of a lawfully recorded and carried out treatment that had previously not required or expected any blood transfusions, and then the question of a life-saving blood transfusion arises. In this case, the Senate cannot derive any binding effect for the doctor from a declaration of the present type.

As stated, the defendants did not need to include this completely improbable eventuality in their deliberations when treatment was started by July 13, 1992. The declaration made, even with knowledge of the documents submitted by the plaintiff, that the plaintiff would commence and continue the treatment of the plaintiff cannot be interpreted so broadly here as to deny the plaintiff life-support measures in the event of the case .

Also the reference to the exemption clause for the defendant contained in the advance directive of the plaintiff, according to which, in the event of the failure of the blood transfusion and the death of the plaintiff, the defendants, apart from self-reproach, at least did not appear to be exposed to any reproaches by third parties or any other Investigations by state authorities could possibly have looked on calmly had the matter not appear in a different, less favorable light to the defendants. The present case shows how questionable such an exemption clause can be. The problem cannot be oversimplified in that way. The often multi-layered complexity of medical treatment, which, as here, is associated with several surgical interventions over a period of several weeks, means that the question of a blood transfusion is only one of many questions to be clarified which, however, are by no means disconnected. If the doctor decides against a blood transfusion in accordance with the will of Jehovah's Witnesses and the patient dies afterwards, the doctor is by no means approved.As in this case, he may find himself exposed to numerous further allegations, for example that he did not properly inform the patient and / or incorrectly brought him into a position in which the question of blood transfusions arose, those without the further alleged errors would not have appeared at all. An aid on how the doctor should behave in such a conceivable predicament and how he can steer the thoughts that are obvious to him at such moments in a direction that is also satisfactory for him does not grow from an exemption clause , as here, expressly contains the following formulation: "I hereby release the doctors, anesthetists, hospitals and their staff from any responsibility for damage that could be attributed to my rejection of blood transfusions if properly cared for.". Failure to transfuse blood can quickly expose the doctor to accusation of negligent homicide.

In the situation that occurred on July 13, 1992, in view of the circumstances described, a new decision and response to the plaintiff's previous declaration of intent had to be made. Since she was unconscious, the applicant could no longer be questioned.

On July 13, 1992, it was possible to question the gentleman named by the plaintiff in the power of attorney. However, it was also possible, as had been done, to apply to the Guardianship Court.

The decision of the hospital and the defendant to 4) to approach the guardianship court is not objectionable.

For one thing, it is by no means certain that the authorized representative could actually be reached immediately when the vital decision was imminent. The power of attorney presented for Mr dated June 27, 1992 contains the addition originally handwritten by himself "Please be sure to respect and observe the above-mentioned wishes of the patient!", whereby this entry is dated 08/01/1992, 8.15 a.m.

Furthermore, as evidenced by the power of attorney form, the authorized representative should only cement and repeat the statement of the plaintiff, which had just become questionable in the specific situation and which had to be questioned, without further examination. Therefore, a questioning of this power of attorney could not provide any liberating clarity. In this situation it was therefore, if not necessary, at least justifiable in every respect to obtain a decision from the Guardianship Court.

The defendant did this in an unobjectionable manner. The Senate cannot infer from the letter to the Guardianship Court dated July 13, 1992 that the consent had been obtained by fraud. The underlying facts are truthfully presented in the letter; Nothing essential is left out either; rather, it is sufficiently expressed that the plaintiff, as a Jehovah's Witness, refused a blood sample in writing. This statement is clear.

It is also noted in the letter that a new briefing with the patient is desired, but this, as it was also true of the facts, is not possible.

The Senate sees nothing wrong with the fact that the letter does not mention that the plaintiff had forbidden a blood transfusion even if she were unconscious. This declaration did not remove the need for information and help for the hospital, which seemed justified. There was also no reason to fear that the Guardianship Court would have refused to appoint a guardian, even if he had been informed of this fact, possibly not aware of it.

The appointment of the plaintiff's husband as a supervisor who was primarily appointed for this purpose and prepared to act responsibly in the interests of the plaintiff was accordingly legal. The caregiver husband has effectively consented to blood transfusions so that they appear legitimate in every respect.

cc)

If one does not want to deny that the conduct of the physicians responsible for the blood transfusion on the defendant's side is unlawful, the plaintiff's claim for violation of her personal rights would at least fail because of the lack of accusation of guilt.

A claim according to § 823 Paragraph 1 BGB presupposes a fault on the part of the person who intervenes in a foreign law. Fault here means willful or at least negligent behavior.

aaa)

Deliberate behavior in civil law generally requires an awareness of the illegality. This can in no case be imputed to the defendant and in particular to the defendant to 4) by giving blood transfusions based on a decision of the guardianship court, the appointment of a supervisor and the consent of the supervisor.

bbb)

But negligent behavior is also ruled out.

Those responsible here at least benefit from a reason to exclude guilt.

The BGB does not know any regulations in this regard. Contrary to the opinion of the defendant, the excuses of criminal law, especially § 35 StGB, have no direct relevance for civil law, in particular they do not automatically exclude civil-law culpability, which is to be judged according to objective standards. In the BGB, however, the aspect of unreasonableness can exceptionally invalidate the charge of guilt (Palandt / Heinrichs, BGB, 61st edition, No. 7 to § 276 BGB with further references). In exceptional cases, a lack of conscience can also be a reason for excuse.

Applied to the present case, these principles mean that the defendants are not accused of negligent breach of the law. Freedom of conscience is one of the fundamental legal values ​​that also affect private law. Even if a general priority of decisions of conscience, especially in relation to contractual obligations, is not to be recognized and the person who resolves the conflict, e.g. B. has foreseen when the contract was concluded (in this case the plaintiff was admitted to the defendant's clinic), no rights can in principle be derived from this, the conscientious decision of the defendant in the present case is in any case excluded from liability.

All statements of the Senate on the question of the illegality of the specific blood transfusions should first be pointed out to avoid repetition and it should be repeated that neither at the time of starting treatment nor at the time of the first laparotomy was it foreseeable that a decision would be made at a later point in time to be met between life and death. The defendants are also entitled to have done everything possible to avoid a blood transfusion.

In view of the circumstances discussed above, with the possible violation of a declaration made by the patient, which was by no means regarded as irrefutable, decided in accordance with her own medical conscience, with the consent of the husband, in favor of the blood transfusion and thus for the life of the patient having at least excuses the defendant's behavior. From a legal point of view, they cannot be accused of any kind of refusal or of carrying out a transfusion. If a transfusion is carried out against the patient's clearly stated preoperative will, in an intraoperative or postoperative emergency there is life or death between a decision of conscience and a decision of conscience. Here the doctor is to be granted the same conscientious decision as it is granted to the patient.

III.

In the absence of incorrect action on the part of the defendant, neither the question of possible contributory negligence on the part of the plaintiff nor questions in connection with the alleged damage to the plaintiff need to be investigated further.

With regard to the blood supply criticized by the plaintiff as a violation of her right to self-determination and the resulting derivation of claims for pain and suffering, the following should be added as a precautionary measure:

1.

Even if one were to assume an unlawful culpable violation of the plaintiff's personal rights, it would have to be taken into account in accordance with § 254 BGB that it was the plaintiff who put the defendant in such an awkward position in the first place , in which the Damocles sword of the compensation claim hung over them from the beginning, without, however, in the specific case a reproach can be made for not having recognized this and not having evaded it.

The plaintiff should have made sure from the outset that she placed herself exclusively in the hands of doctors who were recommended by institutions of her religious community and who were prepared to comply unconditionally with their patient decrees, and not of others, who were exclusively committed to their oath putting sensitive doctors at risk of considerable pangs of conscience. This was quite reasonable for her, as the pelviscopy to be performed on her was not an immediately necessary intervention.

Otherwise, in a situation such as that which had ultimately arisen, the doctor might obey his conscience and would prefer to let a patient like the plaintiff who could be sustained with blood transfusions die without seeing it Open up the applicant from the start. By nevertheless confiding in the defendant's doctors, she consciously took a risk, as every understanding, tolerant and non-believing person should be aware of.

If one wanted to recognize a violation of the plaintiff's personal rights at all, the allegation to be made against the defendant, at best the slightest conceivable, against the behavior of the plaintiff would be completely withdrawn here.

2.

Even if one finally assumed that some of the defendants would in principle cause a claim for compensation for pain and suffering, the plaintiff would not be for another reason Be entitled to compensation for pain and suffering.

a)

The plaintiff was unable to convey to the Senate whether and, if so, what impairments, complaints and damage were caused by the blood transfusions, and to what extent and for how long these had manifested themselves. Is blood transfused into a Jehovah's Witness against his or her express will.

Editorial note 1

The same circumstances under care law
Regarding aspects, a decision was made by BayObLG, decision of February 18, 1993, Az .: 3 Z BR 127/92. The constitutional complaint against this was not accepted by the BVerfG: BverfG, decision of August 2, 2001, Az .: 1 BvR 618/93.

Munich Higher Regional Court, January 31, 2002, 1 U 4705/98
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