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Federal Constitutional Court: New kidney makes legal protection unnecessary
Karlsruhe (jur). Against an incorrect classification according to their own assessment when registering for the Eurotransplant waiting list for donor organs, patients should immediately seek urgent legal protection. Because if the desired organ is transplanted at another transplant center, the dispute with the first center has been resolved, as the Federal Constitutional Court decided in a decision published on Friday, August 12, 2016 (Az .: 1 BvR 1705/15) . Only possible claims for damages can then be clarified before the civil courts.
The main case is piquant, but no longer had to be decided after the Karlsruhe decision due to a lack of interest in legal protection.
The applicant needed a new kidney and therefore turned to a transplant center in Munich. Because she and her husband also considered making a living donation from a kidney of the man, he went to the consultation appointment. The couple were dissatisfied with the conversations. In particular, they would not have found out why the Munich doctors refused to make a living donation. Blood samples taken for clarification were not even examined.
The man cleared his anger by emailing the surgical director for kidney transplants. The email closed with the sentence: "I assume that I do not have to answer the questions of the clinic management or the statutory health insurance association or the like."
In a reply letter, the doctor rejected the "undisguised threat". A trusting treatment of the wife is apparently not possible. For this reason, he would report them to Eurotransplant as "not transplantable".
The woman with kidney disease felt unjustified for her husband's behavior. For months she tried to clarify with the Munich center and finally went to court. With her lawsuit, she demands that her classification as “non-transplantable” was illegal.
She also turned to another transplant center. There she was immediately asked about the Munich classification. After clarification, the second center registered the woman with Eurotransplant and she could get a donor kidney.
This happened before the trial at the Munich Administrative Court. The court therefore dismissed the action as inadmissible. There is no interest in legal protection and determination, because the woman has now received a donor kidney. The Bavarian Administrative Court (VGH) in Munich had confirmed this.
The Federal Constitutional Court also agreed to this. It did not accept the woman's complaint for decision. There is no longer a “legitimate interest”.
As justification, the Karlsruhe judges explained that citizens could only request legal protection if an interference with their rights persisted or continued, or if there was a risk of repetition. Because the woman had a new kidney in the meantime, these reasons were eliminated.
In other cases, courts could exceptionally grant legal protection if the intervention usually only lasted so short that legal protection could not be obtained in the meantime. But that is also not the case here. The woman had sought clarification with the Munich center for months and then only filed a lawsuit and not an application for an urgent decision.
It does not matter that it is still controversial whether the administrative courts or the civil courts are responsible for disputes between the sick and transplant centers. At least in urgent proceedings, the courts are also required to make swift decisions.
If the woman wanted to claim compensation from the Munich center, she could do so directly with a civil suit. If necessary, it should then also be checked whether the classification as “non-transplantable” was justified. A decision about this in advance is not necessary, it says in the resolution of 6 July 2016, which has now been published in writing. Mwo