Since 2009, almost 1,000 people have applied for compensation for suspected thalidomide damage, mostly without success. Now, according to research by NDR, WDR and SZ turn the tide for those affected.
Sometimes, says Petra Wassmann, she just needs help – if she wants to unscrew a bottle or lift something. Because she’s missing both thumbs. Her left arm is also shortened, “about 20 centimeters,” says Wassmann. “And I’m always crooked. The spine is twisted, the shoulder is further down, the left shoulder is not properly developed either.”
For a long time she didn’t question whether there might be a cause for her problems. But as the pain increased over the years, she consulted a specialist doctor. He explained to her that the malformations were probably due to taking Contergan. Her mother had told her that she had taken the drug once during her pregnancy.
Contergan – the name of the drug stands for one of the biggest medical scandals in Germany. In the late 1950s and early 1960s, thousands of babies were born with severe deformities, and many died. Their mothers had taken the sleeping drug Contergan during pregnancy without knowing of the fatal consequences.
It was released as an over-the-counter drug in 1957. The first indications that the active substance thalidomide can seriously damage the developing embryos only came two years later. At the end of 1961 Contergan was taken off the market.
Fight for thalidomide pension
The German state later promised that all those affected would be compensated. A foundation was set up specifically for this purpose. But to this day, many people are fighting to receive a thalidomide pension. For a long time it was not clear to some that the drug could be the cause of their deformities – some mothers later concealed the thalidomide intake out of shame or could no longer remember.
Because even taking a single tablet could lead to the damage. For some of those affected, the health problems only became noticeable in old age. Sometimes they are not easy to recognize and diagnose. Contergan could also damage organs, ears or eyes.
Few applications approved
For a long time it was also not possible to reapply for compensation. This has only been possible again since 2009, since a corresponding change in the law. Since then, almost 1,000 suspected victims have submitted a new application for benefits from the Contergan Foundation. Only a few, around 120 of them, were granted them. Many applications were rejected on the grounds that the disabilities of those affected could also have other causes, such as genetic changes.
Petra Wassmann submitted an application to the Contergan Foundation six years ago, in April 2017. In February 2020 she got the answer. Your application has been rejected. The Contergan Foundation informed her that her deformities were “not with the greatest probability” due to the drug. She appealed and sued. Dozens of similar cases are still pending.
decision of Higher Administrative Court Muenster
Many of the plaintiffs should now draw new hope. It is possible that the foundation has not checked the applications in accordance with the law for many years. This is suggested by a recent decision by the Higher Administrative Court in Münster NDR, WDR and “Süddeutsche Zeitung”. This shows that the tests “probably (…) did not meet the legal requirements according to the current state of affairs”.
The lawyer for Wassmann and other suspected Contergan victims, Karin Buder, sees herself confirmed by this decision. Because the so-called Contergan Foundation Act states that a “commission consisting of at least five members” examines the applications. The chairman must be a lawyer, the other members medical experts. The commission decides whether there is a Contergan damage case. In cases of doubt, you should obtain expert opinions.
Decision solely by lawyers
In fact, only the lawyer alone decided which expert opinions would be obtained, says Karin Buder. So a single person who is also not a doctor. In the end, based on the reports alone, he decides whether the damage is thalidomide. The procedure contradicts the meaning of the law that at least five people advise and decide together – in case of doubt with the help of external experts.
The Contergan Foundation disagrees that their actions are not lawful, but confirms when asked NDR, WDR and SZ that the chairman alone decides which experts within the Medical Commission should submit the applications for examination. They then checked whether there was a sufficient probability of thalidomide damage. If no unanimous vote can be reached by the experts involved, the vote of the majority is decisive, according to the foundation. The first instance, the Cologne Administrative Court, only recently found this procedure to be correct.
Decision probably by the end of the year
Now the Higher Administrative Court in Münster has to clarify which view is correct. Should it “actually come to the conclusion that the commission’s internal procedures do not meet the legal requirements (…), the Contergan Foundation will of course take all necessary measures that the court judgment could subsequently entail,” said the foundation with.
Karin Buder expects a decision by the end of the year. Should the court follow their arguments, at least all ongoing proceedings would have to be reopened. But it could also mean that hundreds of cases from the past would have to be reworked.
Because all cases since 2004 would probably be affected. At that time, the Contergan Foundation changed the procedure for examinations accordingly. In addition to the more than 800 new applications that have been rejected since 2009, there could also be hundreds of rejected applications for revision from the past 15 years – i.e. all the cases in which those affected had unsuccessfully tried to get a higher pension. Overall, the test could have been unlawful in well over 1000 cases.
Agreement on the need for reform
For a long time, however, no one noticed the possible problem, not even the Federal Ministry for Family Affairs, which is responsible for the legal supervision of the Contergan Foundation. On request from NDR, WDR and SZ announced that he was “not aware of any legally relevant procedural errors”.
The Greens member of the Bundestag Corinna Rüffer has been dealing with the Contergan Foundation and those affected for many years. She says there have been many indications over the years that the process is not working properly. She was surprised “that it was still allowed to continue like this”. But there is now a push from Parliament.
There is a consensus among all democratic parties that there is an urgent need for reform. Especially with a view to the medical commission, the problems are “very obvious”. The law that regulates the work of the foundation should therefore be revised “in the interests of those affected”. One does not want to wait for the judgment of the competent court.
It is still unclear what this means in concrete terms for the applications rejected in recent years. However, should all cases actually have to be processed again, the foundation would have a lot of work to do – and additional costs. According to the Contergan Foundation, more than 4,300 reports have been prepared by members of the Medical Commission since 2004. The costs for this amounted to around 1.4 million euros.