BMJ 1998;316:91-94 (10 January)

News

German doctors face new liabilities

Helmut L Karcher, Munich 

The German federal constitution court (Bundesverfassungsgericht) has ruled that doctors could be liable if a child is born after an unsuccessful sterilisation operation or with deformities because of a false diagnosis in genetic counselling.

The ruling followed appeals by two doctors. One had performed a vasectomy on a patient who fathered a child in 1984. The other doctor had advised parents of a disabled child to go ahead with a pregnancy even though their first child had been born with the same deformity. Both doctors had been ordered to compensate the parents by lower courts and had appealed.

The decision has led to controversy between the two senates in the highest German court of justice. In 1993 the second senate decided that the birth of an unwanted or disabled child could not be defined as a "damage" in the legal sense. The first senate, however, commented that it was not the child that was the damage but the unforeseen financial burdens for the parents. This has caused deadlock as both senates are equal in status.

There have been critical comments from doctors, lawyers, and ethicists. Dr Jörg Dietrich Hoppe, vice president of the German federal chamber of physicians (Bundesärztekammer), said that unwanted or disabled children could be stigmatised as a damage to society. Professor Jan Murken, president of the Professional Association for Medical Genetics, pointed out that in many cases genetic counselling could not be specific and could only make recommendations. He feared that counsellors might adopt a more defensive strategy. He said that disablement was a part of life and that no doctor in the world could guarantee parents a perfect child.


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