No German, no heart

Hassan Rashow-Hussein is seriously ill. His heart can no longer pump enough blood through his body. The 62-year old Kurd fled the Iraqi regime 13 years ago, and now he desperately needs a new heart. But the Heart and Diabetes Center in Bad Oeynhausen, North Rhine-Westphalia refused to put him on the donor waiting list. The reason? The man with the failing heart could not speak enough German to understand the complexities of the doctors' orders post-surgery.

Cahit Tolan has recited this story repeatedly in the past few months. He is Rashow-Hussein's lawyer. Since he began representing his client in front of the German Constitutional Court, press requests have piled up on his desk. "Every one has the right to a transplant, when it's medically necessary," Tolan says. "Social class, language or disability should not be the deciding factor."

Clinic stands by decision

At the clinic based in Bad Oeynhausen, they don't understand what the fuss is all about. The rejection was, after all, based on the guidelines of the German Medical Association says Jan Gummert, head of the clinic. In Germany, the guidelines determine who lands on the organ donor waiting list. These guidelines stipulate that language difficulties can influence the cooperation of the patient. After a transplant, patients must take medication and follow explicit instructions from doctors. Otherwise, patients could face dire side effects and even death. "We want to protect our patients," said Gummert.

But the policy is clearly a matter of interpretation. After the rejection, Rashow-Hussein turned to another hospital for help: The University Hospital Münster. And they put him on the waiting list for a heart transplant. Doctors there weren't concerned about the language barrier. For important discussions, the clinic provides patients with an interpreter. Rashow-Hussein's German-speaking family accompanies him anyway for routine examinations.

Lawsuit against the hospital

Is this a case of discrimination? "If non-cooperation is attributed to language difficulties, it's a violation of the equality and justice principles in the constitution, in my opinion," said attorney Tolan. Initially Tolan brought the case to court, calling for 10,000 euros ($13,600) in damages for discrimination. But the case was initially grounded.

The Bielefeld district court refused Rashow-Hussein's application for legal aid, which he had needed due to unemployment. But lawyer Cahit Tolan fought the decision all the way up to the German Constitutional Court, which decided that Rashow-Hussein would receive legal aid, and the responsible district court must determine damages regarding the discrimination allegation.

On Friday, December 20, the Bielefeld District court did just that. Although the hospital refuted the charges of discrimination, a settlement was reached to offer Rashow-Hussein 5,000 euros ($6,800). The hopsital's attorney, Wolfgang Gansweid, emphasized that the payment was not an admission of guilt but was necessary to avoid a lengthy trial with an uncertain outcome.

Life or death: a matter of interpretation

The court also declared the necessity of clarifying the German Medical Association's guidelines and determining whether the regulations are suitable for controlling the allocation of donor organs.

Eugen Brysch, executive board member of the German Foundation for the Protection of Patents' Interests agrees. The foundation represents patients who are seriously ill and in need of assistance. Brysch is calling for clearer rules for inclusion on the waiting list to put an end to the arbitrary nature of the decision-making. He said it should not be a matter of interpretation as to whether or not a patient gets a chance for a donor organ.

The German Medical Association is aware of the problem. It's difficult to determine criteria, such as patient cooperation, says Ruth Rissing-van Saan, who heads the confidentiality center for transplant medicine at the German Medical Association. "The guidelines state that a transplant is dependent on the condition of the patient, his psychological state or even his language skills." For seriously ill patients like Rashow-Hassan, the interpretation of these questions is a matter of life and death.

To avoid such cases in the future, the German Medical Association plans to flesh out the guidelines. Rashow-Hussein can only hope that he's still around to see them. The case has already been drawn out for more than three years. A donor heart hasn't become available to the father of nine, but thanks to a hospital in Münster, at least he has the same chance as people who speak German.