Haftung für übersehene Fehlbildung

Abstract

It is a grave risk for any physician working in prenatal medicine to be liable for an undiagnosed foetal malformation which would have justified an abortion according to section 218 a Abs. 2 StGB, making him responsible for compensation for the complete cost of upkeep and nursing of a handicapped child. Three recent high court rulings concerning the liability for overlooked malformations (amelia) have again emphasised this problem and have also demonstrated how carefully the courts determine whether a legal abortion would have been justified. In two cases this was denied, one of these cases representing a monozygotic twin pregnancy. Since an abortion would have almost certainly terminated the life of the healthy fetus, the "Bundesgerichtshof" specified stringent requirements as to the degree of handicap of the malformed fetus and the degree of additional stress for the mother, both of which were denied. A third case was judged differently because all four limbs were severely malformed and the mother was seen to be in a very unstable psychological state with the possible danger of suicide. Therefore the gynaecologist was judged to be liable for an incorrect ultrasound diagnosis (20/5 gestational week). This court ruling contains remarkable comments regarding the burden of proof and the permission for a late abortion. Although this ruling is in line with recent jurisdiction, it has yielded a surprisingly critical response. this criticism should be levelled not towards the courts, but to the legislative body responsible for the consequences of legalising abortion on (socio-) medical grounds.