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OLG Hamm: Medical assistant was aware of the risks of kidney donation
If, for formal reasons, patients are not properly informed about organ harvesting for live kidney donation, the organ harvesting does not have to be illegal. The Higher Regional Court (OLG) Hamm clarified this in a judgment announced on Friday, October 28, 2016, and dismissed the complaint of a medical assistant for damages and compensation for pain and suffering (file number: 3 U 6/16).
The Dortmund native had decided in 2008 to donate a kidney for her father. The man is suffering from incurable kidney damage. The daughter feared that her father would die on dialysis or even die from his illness.
The medical assistant received written patient information after her donation request, the Transplant Medicine Commission of the North Rhine Medical Association also found that the woman wanted to donate a kidney voluntarily.
At the end of January 2009, she was finally informed about the procedure by several doctors at the hospital in Essen.
But the live kidney donation was different than expected. In May 2014, the father lost the kidney transplanted from his daughter.
The transplant was not without consequences for the daughter either. She states that she is now suffering from fatigue syndrome and kidney weakness. She demanded compensation from the clinic's doctors, including compensation for pain and suffering of 50,000 euros.
She complained that she had not been formally correctly informed about the consequences and risks of organ donation in accordance with the Transplantation Act. So there is only a conversation protocol for the clarification interview, which she and her father signed.
However, the statutory provisions would require that the doctor also certifies the information with his signature. The lead nephrologist was also responsible for the discussion. However, the involvement of an independent doctor is mandatory. Because of the insufficient medical information, she could not correctly consent to the procedure.
However, the OLG saw this differently in its final judgment of September 7, 2016. The claimed procedural deficiencies do exist. There are also doubts as to whether the lead nephrologist should have been involved in the educational discussion. However, the removal of organs does not yet become illegal, so that the donor's consent to the intervention should not be ineffective, the judges emphasized.
A hypothetical consent of the applicant can be assumed here. The woman said that she had decided to donate living kidneys because she feared her father's death or the need for dialysis. As a medical assistant, she was also aware of the considerable risks and the restrictions in her quality of life. Therefore, it can be assumed that she would have decided to donate even if there had been sufficient information, the OLG ruled. fle