Judgment of 30 April 1991
Neue juristische Wochenschrift 1991(31): 1948-1951
1991
ISSN/ISBN: 0341-1907 PMID: 12348553 Document Number: 383409
The plaintiff sued the defendant hospital for damages arising out of the use of HIV-contaminated blood in a blood transfusion administered to his wife and the plaintiff's subsequent infection with HIV. On appeal of a lower court decision upholding the plaintiff's claims, the German Federal Court ruled that the hospital had violated a general duty of care to the plaintiff by transfusing blood that had not been obtained using the best standard of care. It held that the devastating nature of AIDS required the hospital to exercise extraordinary care in excluding members of all high-risk groups, particularly homosexuals, and that the hospital had not exercised such care even though it had distributed leaflets stating that persons in high-risk groups should not donate blood and had required donors to certify in writing that they did not know of any reason why they should be disqualified from donating blood. In the course of its decision, the Court also ruled that HIV infection is a health impairment for the purpose of the Civil Code, even without an outbreak of AIDS, and that the line of causation between the blood transfusion and the plaintiff's infection by his wife had been proven. It concluded that such causation was established because a) other persons who had received blood from the donor in question had become infected with HIV; and b) there was no evidence of another source of infection. On 17 December 1991, the German Federal Court held that patients must always be informed of the risk of infection with hepatitis or AIDS through blood transfusions when the treating physician seriously believes that such transfusions may be required and that they must be informed of the possibility of using their own blood for such transfusions as an alternative to blood from a donor. See Neue Juristische Wochenschrift, No. 12, 1992, pp. 743-4.