Now the time has come. On 28 June 2017, the Federal Court of Justice decided to throw out the public prosecution‘s appeal against the Göttingen verdict: it is now legally binding. All related court proceedings in Leipzig, Göttingen and Munich have been waiting to see whether the initial verdict in Göttingen, which ended up with an acquittal for Aiman O., would be revised. This has not come to pass. It is a good occasion to look back at the background of the scandal.
What exactly happened at Munich, Leipzig, Göttingen, Heidelberg and other university hospitals? In 2012, the supervisory board of the German Medical Association (Bundesärztekammer, BAK) received an anonymous tip about irregularities in the liver transplantation section of Göttingen University Hospital. The BAK started an investigation and discovered various violations of the BAK’s directives concerning the priority of patients on the waiting list for an organ transplantation. The number of violations was surprisingly huge. Most of these consisted in, among others, false statements of medical facts and medical data, which served to determine the ranking position on the waiting list of Eurotransplant, the agency responsible for the allocation of organs. The cheating helped its own patients to move up the waiting list at the expense of others. The BAK informed the press, which flashed up the affair by relating it to organ trafficking and illegal personal enrichment of vicious surgeons. Again, it was the basic idea of a few rotten apples among a basketful of fresh ones. Public prosecution stepped in and the indictment shocked all other surgeons: attempted manslaughter. According to the allegations, the defendant should have known about the lethal consequences of his act for the displaced patients.
Not just a few Rotten Apples – A System in the Dock
But in fact, the story is not about a few rotten apples. The whole system, which is based on a choice between Scylla and Charybdis, is put in the dock. No matter what directives are issued, the scarcity of organs makes it inevitable that some patients will die due to these rules. This is exactly what is happening. In sociology we call this situation Tragic Choices (Guido Calabresi and Philip Bobbitt, 1978). If you put the survival rate first, patients in urgent conditions will die; if you put patients in urgent conditions first, patients with a slightly better survival rate will die while waiting for an organ. In whichever way one acts, he acts in the wrong way. That’s why politicians are trying not to get their fingers burnt and delegate the responsibility to the German Medical Association, which finds itself in a difficult situation with regard to its own directives on organ donation, for it too knows no means of overriding the Tragic Choices.
But let’s get back to the rotten apples. We can refute today that it was a question of individual deeds and individual perpetrators, but far too many directive violations have been listed. While there were no complaints about kidney and pancreas transplantations, those about liver, heart and lung transplantations accounted for 19 percent, 15 percent and 14 percent of the inspected cases, respectively. Of the 2,120 examined transplantations, 354 were manipulated according to the BAK’s Investigative Commission. This is very significant when one compares it with the occurrence, for example, of fraud and counterfeiting in Germany. Here there are 3.4 cases per 100,000 inhabitants. Of course, according to the Commission’s reports, not all, but rather 12 out of 52 transplantation centres were involved. Of these 12, Göttingen was at the top with directive violations in 75 percent of the examined cases, followed by Jena with 63 percent and Heidelberg with 56 percent. On average, directive violations were listed in 38 percent of cases at the 12 centres. As always, it turns out that we are not dealing with individual deeds, but with policy violations by the entire system.
What lies behind the System Breaches?
But what was behind it? The doctors’ greed for personal enrichment was certainly not. This is much too simple. The accusation of attempted manslaughter already drew attention to the fact that there was no sufficient evidence for greed motives of the surgeons. Otherwise they would have attempted murder. We can show that the surgeons in this field, first of all, are very much oriented towards the benefit of the clinics and their own reputation. Everyone knew in this field how many organs each other transplanted. And some had been extrapolated to transplant more organs. The fate of the patients played no role at all. Secondly, the dilemmatic situation seems to us an important reason for the evisceration of the BAK rules. It is crystal clear in the case of liver transplantation. Here the surgeons were not allowed to perform the transplantation until the established medical indicator system made sure that the severely ill patients were truly severely ill, and the transplantation often only served to delay death. They had to keep their figures off the sick patients with better healing chances. Confronted with the day-to-day suffering they witnessed, this might have caused some to help with false statements of medical data. Thirdly, the field of transplantation medicine has only been regulated lately and many of the surgeons are used to a higher degree of freedom in their decisions. Since the individual case is always complex and difficult to comprehend with rules, it is obvious that some medical practitioners took over control themselves and, apart from the rules, relied on their medical professionalism. This does not apologize for such misconduct, but tells us a lot about its background.
But why is the accused surgeon in Göttingen now legally absolved? In the majority of cases, the manipulations could be demonstrated, but they could not be attributed to him. In other cases, there was no presumption of a criminal offense, since, among other things, the BAK directives were regarded as unconstitutional. So Aiman O. is now finally out of prison, while the same statement of the Federal Court of Justice has given the system of transplantation medicine a serious warning.
Pohlmann, Markus und Höly, Kristina (2017): Manipulationen in der Transplantationsmedizin – Ein Fall von organisationaler Devianz?, in: Kölner Zeitschrift für Soziologie und Sozialpsychologie, Heft 2: 1-27, link.springer.com