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Incorrect information before living kidney donation – HEALTH ADHOC

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Incorrect information before living kidney donation – HEALTH ADHOC

Friday, March 1, 2024, 9:00 a.m

Berlin – In 2018, a healthy, young and sporty woman donated a kidney to her sister who had kidney disease. However, the procedure at the Berlin Charité did not go as planned. During the minimally invasive kidney removal, she suffered significant injuries that put her life in acute danger due to internal bleeding. Only an emergency operation and a blood transfusion saved the young donor’s life.

The donor, a former competitive athlete (professional boxer), still suffers from the physical consequences of kidney loss in addition to the traumatic experience. As a result of the donation, the woman is recognized as having reduced earning capacity and only works part-time. She had to give up her sport.

Since the doctors at the Berlin Charité were of the opinion that the severely damaged young living kidney donor was treating her incorrectly and had also not adequately explained the risks, she sued the doctors and the clinic for compensation and damages at the Berlin Regional Court (LG) (AZ 17 O 254/21).

The legal proceedings before the Berlin Regional Court

A first report obtained by the court before the hearing based on the court files turned out to be “unscientific song of praise” (Quote from the plaintiff’s representative) on the treating doctors and, contrary to the expert’s order, commented on questions of clarification. “(…) obviously we know each other well, (…)”said the plaintiff, lawyer Weinholz from Berlin. The application for bias by the living kidney donor, who is now acting as a plaintiff, against the expert known in the expert world was successful (see also press release from the Living Kidney Donation Interest Group from January 18, 2022: “Living kidney donation: Berlin court dismisses renowned expert in the trial against Charité”).

The second expert appointed by the court also did not see any treatment errors in the injuries during the operation. However, he confirmed that up to 17% of living kidney donors suffer from an exhaustion syndrome known as fatigue syndrome, citing a study from the defendant Charité. The expert confirmed that the plaintiff is suffering from the consequences of kidney loss with reference to earlier reports that were prepared on behalf of the Berlin Accident Insurance Fund as part of another social law administrative procedure.

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Finally, the parties met on January 26, 2024 for negotiations before the Berlin Regional Court. After the court introduced the facts and the dispute, it made a preliminary assessment. The court immediately addressed the question of clarification because it saw violations here. In making its assessment, the LG explicitly referred to the fundamental judgments on incorrect clarification of the Federal Court of Justice from 2019 (BGH, January 29, 2019 – VI ZR 495/16 and VI ZR 318/17).

The fact that a standard information sheet for a nephrectomy with a diseased kidney was used in the information was incorrect, but this breach of form alone would not necessarily make the information directly ineffective, according to the presiding judge Bebensee at the LG.

The court then very clearly expressed its doubts as to whether the donor information had been sufficient, as simply listing fatigue as a possible risk without further explanation was not sufficient. A comprehensive assessment from the donor and recipient perspective is fundamentally necessary.

With regard to the actual health consequences for the plaintiff, the statements in the report from the accident insurance procedure that has already been completed are sufficient for an assessment. The standard of proof according to § 287 ZPO was maintained here, so that the court believed the plaintiff.

According to the court, the lawsuit against the Charité has a chance of success!

After weighing up the remaining litigation and cost risks, the parties then agreed on the settlement sum of €135,000, which, taking into account possible inflationary developments in further years of litigation, comes very close to the claimed damage amount.

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At the end of the hearing, the plaintiff impressed everyone present, especially the defendant and their lawyer, with a controlled but emotional closing statement addressed to the defendant doctors (quote):

“They told me everything would be the same after the donation as before. I would be able to live a normal life. Nothing is the same as before. Educate people about fatigue. Fatigue destroys you. You, the doctors, go home after work and everything is as usual. But nothing is the same for me anymore. The donors’ families also suffer from the situation. Remember that the donors lying there on your table are people too! My life is now destroyed. Please remember your responsibilities!”

The plaintiff and her legal representative, lawyer Konstantin Weinholz from Berlin, received technical support in the preparation and implementation of the lawsuit from the Kidney Living Donation Interest Group. V. The association has been successfully campaigning for damaged living kidney donors since 2012 under the leadership of its first chairman Ralf Zietz.

Assessment of the Living Kidney Donation Interest Group. v.

This settlement is a great success for the plaintiff and acts like a verdict for the Charité. A clear dent in the reputation of the Berlin Charité.

The incorrect explanation alone – assessed according to the requirements of the Federal Court of Justice – leads to the measurable success of the lawsuit, even without an official judgment.

Doctors who provide information before living organ donation must not only scrupulously comply with the formal requirements of the Transplantation Act. Simply listing risks in a catalog is not enough. Particularly because of the possible chronic exhaustion and tiredness (fatigue syndrome) after kidney removal, it is important to have full information and consideration from both the donor and recipient perspectives. There are also reasons that speak against donating. These need to be discussed in detail.

The fact that the defendant doctors had published a study on fatigue after living kidney donation two years before the procedure, with clear results (up to 17% of donors suffer permanently from fatigue syndrome) and then did not provide proper information about this, leaves you speechless (2016 – Friedersdorff et al. – Long-Term Donor Outcomes after Pure Laparoscopic versus Open Living Donor Nephrectomy: Focus on Pregnancy Rates, Hypertension and Quality of Life; Source: Urol Int 2016;97:450–456 doi: 10.1159/000447064).

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Ralf Zietz, 1st Chairman of the Living Kidney Donation Interest Group. V., who attended the hearing as an observer, for comparison:

“The BGH’s fundamental ruling on clarification, which I also fought for, is effective. It’s time for this to get into the minds of doctors! Living kidney donation must remain an exception. It may only be carried out between people who are emotionally close to each other.

The risks do not allow expansion. This is my clear warning to the politicians and doctors who are currently calling for a weakening of the legal requirements for living organ donation in the discussion about the planned amendment to the Transplantation Act!”

Information about the procedure is provided:
Lawyer Konstantin Weinholz
Specialist lawyer for medical law
c/o Specialist law firm at Olivaer Platz
Olivaer place 16
10707 Berlin
Tel.: +49 30 20849645-0
E-Mail: [email protected]

The information requirements, deliberately formulated strictly by the legislature and punishable separately in Section 19 Paragraph 1 No. 1 TPG, are intended to protect potential organ donors from causing greater personal harm to themselves; they serve to “protect the donor from himself.” Federal Court of Justice on January 29, 2019 (VI ZR 495/16 and VI ZR 318/17)

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