Ulrich Pfeifer and Ruth Horn.

Should it be permissible to convict a doctor who has performed life-sustaining treatment (LST) without medical indication? At first sight, the answer seems obvious: a medical intervention is only lawful if there is 1) valid consent and 2) a medical necessity that is medical indication. In the absence of either one of them, the intervention violates a person’s bodily integrity.

A recent ruling by the German Federal Court of Justice from 2019 seems to be at odds with the principles just mentioned. The civil lawsuit concerned clinically assisted nutrition and hydration (CANH) in an 82-year-old patient with advanced dementia. The charge brought by the patient’s son against the responsible general practitioner (GP) stated that the GP’s failure to discontinue CANH, when it no longer served a defined therapeutic goal, unnecessarily prolonged the patient’s suffering. Importantly, the suit was filed after the patient´s death and the patient´s will regarding LST was not known. The son asked for €100,000 in compensation for suffering and €50,000 in indemnity.

The court dismissed the son’s claim, stating that there was no damage. Without CANH, the patient would have died. With CANH, he survived. To establish a damage, it would be necessary to argue that life could be worse than death and the court found this to be inadmissible. Having ruled out a damage, the court deliberately did not address questions of causation and breach of duty.

The legal reasoning of the court touches upon two complex subjects: “wrongful life” and “value of life”. In our brief report, we discuss these topics, how they relate to the case and which aspects of the court´s interpretation we view critically.

“Wrongful life” is a term originally used to describe claims for compensation after the birth of a child with disability. Importantly, the charge in these cases is not that the disability was preventable but rather that the parents would have terminated the pregnancy if they had known about the disability. Hence, the alleged damage is the survival of the disabled child. Despite this obvious parallel to the present case, there are also significant differences, namely between termination of pregnancy and withdrawal of LST and between the moral status of a foetus and that of an incompetent adult.

Regarding “value-of-life”-judgements, the court ruled that no value judgements should be made about the life of another person. We argue that this prohibition is too rigid to be applicable in clinical practice, especially since value judgements at the end of life cannot always be avoided.

Relevant ethical and practical questions remain after this verdict: would the ruling have been different if there had been a clear advance directive refusing LST? If so, how would damage be established? Would the same case be decided differently in another jurisdiction? Finally, how will it shape legal and medical practice in Germany? The answer to the last question is not clear yet. Much will depend on the extent to which judges and doctors are willing to draw generalisations from the specific and somewhat exceptional constellation in the case. We see a risk that physicians may interpret this verdict as encouragement to always provide LST, since this seems to be the safe option from a legal point of view.

At the core of the case we discuss is the tension between a breach of duty on the one hand and the lack of a legally recognised damage on the other hand. Ultimately, the reasoning of the Federal Court seems to be in line with a principle already clearly expressed in US case law: “There are some mistakes, indeed even breaches of duty or technical assaults, that people make in this life that affect the lives of others for which there simply should be no monetary compensation.” (Anderson v. St. Francis-St. George Hosp. Inc 1996)

Paper title: Can there be wrongful life at the end of life? German courts revisit an old problem in a new context

Authors: Ulrich Pfeifer and Ruth Horn.

Affiliations:

UP: Pediatric Neurology and Metabolic Medicine, Center for Pediatric and Adolescent Medicine, Heidelberg University Hospital, Heidelberg, Germany

RH: The Ethox Centre, Wellcome Centre for Ethics and Humanities, NDPH, University of Oxford, Oxford, UK.

Competing interests: None declared.