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Varanasi on the banks of the sacred Ganges tourists wanted to attend a traditional cremation. Among the members standing around the combustion candidates they thought that was really already dead, and we should now put it on the wood pile and burn them. These, however, were arguing whether the Ansinnens with the tourists so loudly that the dead woke up, grabbed his bag, and went back home.

The federal government presented a draft Second Act amending the Transplantation Act (BT printed matter 19/6915) on 08/01/2019. a de facto increase in organ donations to be achieved by improving cooperation and structures. Concern seems that the living will in practice is often overrated, although organ donation declaration is available.

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Consistent legal removal of obstacles to increasing organ donation

Currently, equipment intensive care are often shut down for lack of (no longer) present indication and lack of cost units at no more medical treatment especially after you've begun irreversible process of dying. This also medical ethics and professional legislation play a role, and possibly even the (suspected) patients will, and sometimes also a potential liability of treating physicians for pain and suffering. But that would undermine an intended organ removal.

Organ removal requires brain death

The new law provides for consistent implementation of financing by the hospital for the time between no longer medically necessary intensive treatment and the occurrence of brain death - next to the time thereafter until and removal itself - receives compensation. Health insurance (KV) of the organ donor pays in time - as before - only for medically necessary intensive care. For everything else, through to post-mortem organ removal, is no longer the patient KV performance obligation - and never has been.

Donor organs must not be damaged by painkillers

Danach wird die Intensivmedizin fortgesetzt, damit die Organe des Patienten bis zur Entnahme „frisch bleiben“ (Erhalt der Transplantationsfähigkeit). Bis zum Hirntod können dann Minuten, Stunden, Tage oder Wochen vergehen – oder der Sterbende beginnt gar wieder selbständig zu atmen und verfällt in ein dauerhaftes Wachkoma. Die Bundesärztekammer meint sinngemäß, dass beim bereits vermuteten Hirntod des Organspenders die Vitalfunktionen bis zur Feststellung des Hirntodes – kurzzeitig, in jedem Fall auch entgegen anderslautender Patientenverfügung – aufrechterhalten werden dürfen.

Gesetzliche Stärkung des Transplantationsbeauftragten und Spender-Selektion

Kliniken haben einen Arzt als Transplantationsbeauftragten (TPB) freizustellen, der bei Patienten mit Organspenderausweis weisungsbefugt gegenüber den behandelnden Medizinern wird. Jeder andere ist ab dann nur ein Rad im Getriebe, ohne umfassende Verantwortung. Und der TPB ist nur verantwortlich dafür, dass es genug Organe gibt, und möglichst wenige übersehen werden – weshalb auch eine Statistik über potentielle aber nicht genutzte Organspender vorgeschrieben ist.

A period of time, within the brain death must be expected, is not given to it. From the perspective of DRGs (DRGs) but must be calculated here. This force a selection of takeout candidate after the expected period until the expected brain death, so that by then only required for this intensive treatment in the middle of it can be financed.

Organ donor card destroys living will?

Who wants the setting of life support in the advance directive, but has a donor card, is it clear that he was perhaps legally, but it is determined medically not advise on the establishment of patients available if both are in contradiction with the consequence that his advance directive perhaps ineffective? In any case, interpretable by determining the TPB, which was probably the real will of the patient with simultaneous donation desire contrary to the wording.

Organ donation declaration can not be invalidated by the hypothetical assumption in any case that the patient about the need to continue intensive care measures - until the onset of brain death - was not aware - and would not have agreed under these conditions of organ donation. Currently, it is discussed whether every citizen when picking up a new ID card with flag in a register must rule on organ donation.

Some voices want to make legally Anyone who does not reject it for organ donors - which is then described as so-called contradiction solution as it contains a recently submitted draft from the Ministry of Health.

Consent is not necessary in countries with conflict solution

Rarely someone will come up with the idea, an insoluble bracelet, a necklace or a tattoo with the word "organ removal forbidden" to wear. In numerous countries, including the European Union (EU), is everyone automatically organ donors - unless the contrary is, for example, in a register bookmarked, or relatives are informed and take care of the observance of contradiction.

It affects every EU citizen who lives about in Belgium for at least six months. Not always the family can be reached for interviews.

Living will is possibly obsolete in organ donors

Conversely, if a higher court to see it the other way around, so the living will always give priority to - for example, because the time was up to brain death associated with additional suffering, and the official organ donor card was not accompanied by a "consumer-Note" - so would the clinic and the TPB ( may adhere also to heirs) for damages; see. Munich Higher Regional Court, Az 1 U 454/17, judgment of 12.21.2017 -. But that the Supreme Court lifted recently.

This even if with some "luck" of others does not end at death as brain death prevented the patient months later as an organ donor, but as a persistent vegetative state patient lives. After all, said the Pope, most Catholic marriages are also closed ineffective due to lack awareness of what is actually there to explain.

So considered, the organ donor may have been lacking in his decision awareness of the catharsis through some pain at the end of life. future courts decide if this is an unremarkable motif error - or at least was a remarkable property error to adverse reactions in organ donation.

Pattern living will with Form Vorsorgevollmacht often ineffective?

Der Bundesgerichtshof (BGH, Beschluss vom 08.02.2017, Az. XII ZB 604/15) entschied bereits: „Die schriftliche Äußerung, dass “lebensverlängernde Maßnahmen unterbleiben” sollen, enthält für sich genommen nicht die für eine bindende Patientenverfügung notwendige konkrete Behandlungsentscheidung des Betroffenen.“

Rather, it is important that individually and personally, a reference is included to specified diseases or treatment situations. This was repeated, the Supreme Court (decision of 11.14.2018, Az XII ZB 107/18.); and this decision was taken after the person concerned was already over 10 years in a vegetative state.

The Supreme Court (. Decision of 06.07.2016, Az XII ZN 61/16) requires - for consent, not consent, revocation of consent concerning medical interventions - a sufficiently clearly defined mandate text so effective "decision-making authority of the authorized representative". Necessarily more necessary proxy content has to be an indication that "may be connected to the reasonable risk of death or serious and longer-lasting health damage, the respective decision."

BGH disregard living wills consequences practically

By judgment of 2 April 2019 - Az. VI ZR 13/18 - The Supreme Court has made clear that a doctor is never liable for life and leidensverlängernde measures, not for pain and suffering even at the expense, this even if he violates obligations and clearly otherwise living will simply disregarded: "human life is the highest-level of legal protection and absolutely worth preserving. The opinion on its value is to any third party.

(Article 1, Section 1, Article 2, paragraph 2, sentence 1 of the Basic Law....) To be regarded as damage - therefore it is ruled out, life - also suffer-affected survival. Even if a patient himself may consider his life as unworthy of life, with the result that a life-saving measure has to be avoided against his will, the constitutional order of all state authority, including case law prohibits such a judgment on the life of patients affected with the conclusion that life suffered a loss.

The applicant has also no claim for compensation deriving from the survival of the patient for treatment and care expenses. Protective purpose of any education and treatment requirements in connection with life support is not to prevent economic burdens associated with the continuation of life and the inherent life disease-related suffering. "

Organ removal and counter expressly provided in the patient's will?

This will among potential organ donors a life-prolonging intensive therapy to brain death for the purpose of organ removal even against a clear advance directive easier because legal consequences for the treating physician. He can see the life of the organ recipient as a priority goal to strive so contrary.

If the advance directive ineffective with or without power of attorney, it has transplant Commissioner easier to lead his regiment. he does not have a treatment order by the patient - and can therefore hardly come into conflict.

His responsibility is rather on increasing the number of organ removal and the removal of obstacles along the way. If the living will but effective, and would be the wording of a life-prolonging intensive therapy to achieve the removal of organs in the way it can be disregarded also to achieve a higher goal, according to the BGH ultimately, without the physician would have to fear consequences.

prohibit removal of organs?

The TPB has hardly expect resistance; and if he can override consequences it to track the level of ambition of the permitted organ donation necessary simply. The handling of TPB with the precautionary proxy or caregivers is a communication issue.

Unity can always exist, that it depends on the will of the patient. Who wanted to organ donation, which is reflected in the possession of an organ donor card. The precautionary proxy or caregiver may then even explain how he presented this when previously failing organs lack of ventilation irreversible before brain death? It should often be the result that the facilitation of organ donation proves priority will. If the pension or authorized supervisor joins this view - the TPB has achieved his goal.

If not, will result in the documentation of TPB with witnesses that the precautionary proxy or caregivers could make no good reason, and tried even in morally reprehensible way to bring about a counter standing to the will of the organ donor result. With the unavoidable conclusion that one or more possible

Organ recipients die on the waiting list.

If later - for example after 8 years - pointing out that this was not legally correct, this does not disturb also because it follow any claims. Lack of a legal interest are therefore lawsuits possibly inadmissible from the outset, in particular about even in a conflict with the living will.

Only those who have explicitly objected to organ donation, is not affected sooner. Unless the corresponding handwritten note is not found in the wallet between bank notes and receipts, and not looking around for privacy on the instructions of the hospital Privacy Officer.


Article by: By Dr. John Fiala and Dipl.-Math. Peter A. Schramm

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