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You are here: BAILII >> Databases >> European Court of Human Rights >> Wolfram HAUTH v Germany - 29496/09 [2010] ECHR 1788 (19 October 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/1788.html Cite as: [2010] ECHR 1788 |
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FIFTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
29496/09
by Wolfram HAUTH
against Germany
The
European Court of Human Rights (Fifth Section), sitting on
19
October 2010 as a Committee composed of:
Mark
Villiger, President,
Isabelle
Berro-Lefèvre,
Ganna
Yudkivska, judges
and
Stephen Phillips, Deputy
Registrar,
Having regard to the above application lodged on 4 June 2009,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Wolfram Hauth, is a German national who was born in 1946 and lives in Berlin.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In October 2001 the applicant was diagnosed with a carcinoma in the caecum and gall stones. His physician proposed that the cancer be removed and that the gall bladder not be removed; the physician referred the applicant to a Berlin hospital for surgery.
On 2 September 2002 the applicant underwent colon surgery. During the course of the surgery the surgeon – a professor of medicine at a hospital of a public university – on his own motion decided to remove the applicant's gall bladder as well without having obtained the applicant's consent prior to the removal.
After the surgery the applicant suffered from pyrosis.
On 19
December 2007 the Berlin Schöneberg District Court dismissed the
applicant's claim of compensation for non-pecuniary damages against
the surgeon and the hospital. It held that the surgeon had illegally
and wantonly caused personal injury by removing the applicant's gall
bladder and that he had also violated the applicant's personal rights
(allgemeines Persönlichkeitsrecht) by acting
without the applicant's consent. The court, however, also held that
the violation of the applicant's personal rights had not been so
serious as to require compensation. Furthermore, the court accepted
the submissions of a court appointed medical expert that pyrosis was
not a typical after-effect of the removal of the gall bladder and
concluded that the applicant had failed to show that he suffered from
such typical physical after-effects, and that he had not shown that
the pyrosis was caused by the removal of the gall bladder.
The applicant appealed.
On 17 July 2008 the Berlin Regional Court informed the parties of its intention to dismiss the applicant's appeal as ill-founded. It argued that the surgeon had acted in a private capacity on a contractual basis, that the applicant was not suffering from physical after-effects that had been caused by the removal of the gall bladder and that the infringement of his personal rights had not been especially grave. The removal of the gallbladder had not been more invasive than the colon surgery to which the applicant had consented. Although the gall bladder, a whole organ, had been removed, it had to be taken into account that it had been abnormal because of the gall stones.
On 25 August 2008 the Berlin Regional Court dismissed the applicant's appeal.
The applicant lodged a constitutional complaint in which he complained about a violation of the positive obligations of his right to respect for his physical integrity and his private life.
On 5
December 2008 the Federal Constitutional Court refused to admit the
applicant's constitutional complaint for examination
(no. 1 BvR
2691/08).
B. Relevant domestic law
A person who, intentionally or negligently, unlawfully injures the body and health of another person is liable to make compensation to the other party for the damage arising from the injury (Section 823(1) of the Civil Code). In such a case, the injured person may also claim compensation for non-pecuniary damages (Section 253(2) of the Civil Code).
According to the case-law of the Federal Court of Justice, serious violations of personal rights may also give rise to a claim for compensation for non-pecuniary damages. Whether a violation of personal rights is deemed serious enough to warrant compensation is determined using the following factors: the intensity and consequences of the violation; the actor's intentions; and the nature of the violated personal rights.
COMPLAINT
The applicant complained under Article 8 of the Convention that the dismissal of his claim for compensation against the surgeon following the illegal removal of his gall bladder had violated his right for respect for his private life.
THE LAW
The applicant complained under Article 8 of the Convention which reads, as far as relevant, as follows:
“1. Everyone has the right to respect for his private ... life...
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the protection of the rights and freedoms of others.”
The Court recalls that matters concerning individuals' physical and
psychological integrity, their involvement in the choice of medical
care provided to them and their consent to such
care fall within the ambit of Article 8 of the Convention (see
Trocellier v. France (dec.), no. 75725/01, ECHR 2006 XIV).
Even a minor interference with the physical integrity of an
individual must be regarded as an interference with the right to
respect for private life if it is carried out against the
individual's will
(see Storck v. Germany, no. 61603/00, §
143, ECHR 2005 V). In the present case, however, the surgeon,
acting on a contractual basis and in his private capacity, interfered
with the applicant's physical integrity; the interference can
therefore not be directly attributed to the respondent Government.
The
court reiterates that although the object of Article 8 is essentially
that of protecting the individual against arbitrary interference by
the public authorities, it does not merely compel the State to
abstain from such interference: in addition to this primarily
negative undertaking, there may be positive obligations inherent in
an effective respect for private or family life; these obligations
may involve the adoption of measures designed to secure respect for
private life even in the sphere of the relations of individuals
between themselves (see X and Y v. the Netherlands, 26 March
1985, § 23, Series A no. 91). Contracting States are therefore
under a positive obligation to maintain and apply in practice an
adequate legal framework affording protection against acts of
violence by private individuals (see Sandra
Janković v. Croatia, no. 38478/05,
§ 45, ECHR 2009 ... (extracts)), as well as enabling
victims to establish any liability of the physicians concerned and
obtaining appropriate civil redress, such as an order for damages, in
appropriate cases (see Codarcea v.
Romania, no. 31675/04, §
103, 2 June 2009; compare, with regard to positive obligations under
Article 2 of the Convention, Colak and Tsakiridis v. Germany,
nos. 77144/01 and 35493/05, § 30,
5 March 2009; and
Calvelli and Ciglio v. Italy [GC], no.
32967/96, § 51, ECHR 2002 I).
The Court further reiterates that the choice of the means calculated to secure compliance with Article 8 of the Convention in the sphere of the relations of individuals between themselves, is in principle a matter that falls within the Contracting States' margin of appreciation and that the nature of the State's obligation will depend on the particular aspect of private life that is at issue (see Odièvre v. France [GC], no. 42326/98, § 46, ECHR 2003 III).
The Court must accordingly consider the legal framework for the applicant's claim for non-pecuniary damages against the surgeon under German law as well as the reasons given by the domestic courts for not awarding him non-pecuniary damages for the illegal removal of his gall bladder.
The
Court notes that the domestic courts unequivocally established the
illegality of the surgeon's actions but refused the applicant's claim
for non-pecuniary damages because he had failed to show that he
suffered from physical after-effects that had been caused by the
removal of the gall bladder and because the violation of his personal
rights in removing the gall bladder without his consent had not been
as grave as requiring
non-pecuniary damages.
The Court is of the opinion that the German legal system in the present case provided adequate redress for acts of medical malpractice; it also provided sufficient individual redress for the applicant by unequivocally establishing the illegality of the surgeon's actions. The requirements for non-pecuniary damages in cases of medical practice under German law – namely suffering from after-effects or especially grave violation of the patient's free will to determine the scope of surgery – were within the margin of appreciation to be accorded to Contracting States under Article 8 of the Convention. The Court notes, with the Berlin District and Regional Courts, that the applicant had not shown that the pyrosis from which he suffered had been caused by the removal of the gall bladder. The refusal of the applicant's request for an order for damages, therefore, did not amount to a violation of the positive obligations under Article 8 of the Convention.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stephen Phillips Mark Villiger
Deputy Registrar President