EHRM, 15-01-2013, nr. 8759/05

The Court makes reference to the general principles it has established concerning the State's responsibility for medical negligence under Articles 2 and 8 of the Convention. In particular, it reiterates that the Contracting States are under an obligation to introduce regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients’ lives (see Trocellier v. France (dec.), no. 75725/01, § 4, ECHR 2006-XIV).

Moreover, the Court has underlined that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It has considered it reasonable to infer from this that the Contracting States are bound, by virtue of this obligation, to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of a planned medical procedure on their patients’ physical integrity and to inform patients of these consequences beforehand, in such a way that the latter are able to give informed consent. In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be directly liable under Article 8 for this lack of information (see Trocellier, cited above, § 4; Vo v. France [GC], no. 53924/00, § 89, ECHR 2004-VIII; Codarcea, cited above, § 105; and Pretty, cited above, § 63).

Lastly, the Court reiterates that in the specific sphere of medical negligence, if the legal system affords victims full access to civil proceedings or to disciplinary proceedings which may lead to liability for medical negligence being established and a corresponding award of compensation, this could in principle be sufficient to discharge the State's positive obligation to provide an effective judicial system (see, mutatis mutandis, Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 48–51, ECHR 2002-I, and Codarcea, cited above, § 102).

Turning to the facts of the case under examination, the Court notes that following a medical procedure performed by Dr P.C. in a state hospital, the applicant's life was endangered and she was left permanently unable to bear children.

There has accordingly been an interference with the applicant's right to respect for her private life.

The applicant did not argue that her loss had been caused intentionally by the doctor. Her complaint refers rather to the doctor's negligence in performing the medical procedure and an inadequate response from the authorities.

It remains, therefore, to be assessed whether the State has complied with its positive obligations set out in Article 8 of the Convention.

The Court first notes that all the medical expert reports in the case concurred that the doctor had failed, prior to the procedure, to either obtain the applicant's informed written consent or to perform the pre-operative checks required.

The Court attaches weight to the existence of prior consent in the context of a patient's right to respect for his or her physical integrity (see Codarcea, cited above, § 104). Any disregard by the medical personnel of a patient's right to be duly informed can trigger the State's responsibility in the matter (idem, § 105).

It also notes that domestic legislation expressly provides for the patient's right to receive information sufficient to allow that patient to give, and the doctor's corollary obligation to obtain, informed consent prior to a procedure involving any risk.

The Court cannot find a reasonable explanation for why that consent was not obtained in the present case. It cannot accept the Government's position, according to which the fact that the applicant was a trained nurse dispensed the doctor from following established procedures and informing her of the risks involved in the procedure.

Furthermore, it transpires from the facts that, while the need to abort the foetus was undisputed, there was no extreme urgency in performing the procedure. Therefore, the doctor was not under time constraints that could justify him not conducting preliminary tests on his patient or not properly assessing whether the town hospital was adequately equipped to deal with the possible complications.

The expert opinion prepared for the College of Doctors lends force to this argument.

The Court notes that the medical expert reports drafted during the criminal prosecution did not deal with the issue of urgency, despite the applicant's requests and objections to this end. The questions asked by the applicant were relevant and in answering them the forensic authorities could have helped shed light on the unfortunate events that led to the applicant's loss.

It remains to be ascertained whether the remedies at the applicant's disposal were sufficient to provide her redress for the loss suffered as a result of the medical procedure (see paragraph 43 above).

The Court notes that in the instant case the applicant attached a civil claim to her criminal complaint against the doctor (see paragraph 15 above, as well as Perez v. France [GC], no. 47287/99, § 70, ECHR 2004-I). In theory, at least, at the end of these proceedings, the applicant could have obtained an assessment of and compensation for the damage suffered. This remedy was therefore appropriate in the present case and the Court will thus examine the manner in which the investigation was carried out.

The Court observes that the medical reports established that despite the obvious mistakes made in the handling of the case, there was no medical negligence on behalf of the doctor (see paragraphs 14, 16, 18 and 20 above and a contrario, Stihi Boos, cited above, § 60). Looking at the documents before it, the Court notes, however, that the prosecutor did not weigh the conflicting factual issues presented by the case.

In particular, the prosecutor based his decision on the forensic reports issued at his request. He did not take into account the medical expert report prepared for the College of Doctors, although it was exhaustive and pointed to procedural shortcomings. He also failed to take the opinion of the Forensics Institute — the superior forensic authority — on that report into account. He thus only examined the two reports issued by the forensic laboratories. He also failed to provide answers to the questions raised by the applicant. The Court reiterates its finding that those questions were relevant and significant for the clarification of the events (see paragraph 52 above).

The Court is not in a position to contradict the domestic courts’ findings concerning the lack of criminal responsibility of the doctor in the case. However, given the serious consequences of the procedure, and the fact that the applicant had to go through it without being properly informed of the risks involved, the Court finds it unacceptable that an operation could be performed without respect of the rules and the safeguards created by the domestic system itself.

The Court will further examine whether, as the Government claimed, a civil action against the doctor and the hospital could have constituted an effective remedy.

The Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust domestic remedies (see Stihi Boos, cited above, § 64).

At the outset, the Court notes that although the experts acknowledged the existence of procedural failings on the part of Dr P.C., they excluded the existence of medical negligence (see paragraphs 14, 16, 18, 20 and 55 above). In contrast, in Stihi Boos the medical expert reports formed the opinion that there had been no medical negligence because the decisions taken by the medical personnel had corresponded to the diagnosis and the general state of the victim's health (see Stihi Boos, cited above, §§ 21 and 29–31).

It is to be noted that, when the facts of the present case occurred, the system did not allow for a new forensic report to be commissioned, as the Forensics Institute had already given its opinion on the case (see Eugenia Lazăr, cited above, § 90; and Baldovin v. Romania, no. 11385/05, § 22, 7 June 2011). Therefore, it would have been impossible for the applicant to raise the issue of medical negligence again in a new set of proceedings, despite the significance that its elucidation might have had for the outcome of those proceedings. This casts doubt on whether a civil claim by the applicant against the doctor would have been an effective remedy, particularly given that an expert report would have constituted the essential evidence to support her case in the civil courts.

The Court has already identified shortcomings in the Romanian system in respect of the limitation of doctors’ liability to cases of established medical negligence (see paragraph 26 above and Eugenia Lazăr, cited above, § 90). Bearing in mind the consistency with which the expert reports excluded the existence of medical negligence in this case, the Court finds it even more difficult to see how this remedy could be effective in practice in the applicant's particular situation.

The Court will also assess the ability for the applicant to seek compensation directly from the hospital. It notes at the outset that she did not point to a lack of coordination between the two hospitals involved. She restricted her complaint to the decisions taken by one doctor.

The Court notes that the domestic case-law in the matter is developing, but that the domestic courts have not consistently established the liability of hospitals in cases of medical negligence (see Codarcea, cited above, §§ 71 and 108; and Stihi Boos, cited above, § 64).

In the case under examination, it appears that the hospitals immediately took charge of the applicant's case. Their swift intervention made it possible to limit the negative consequences of the initial procedure and to save her life (see, a contrario, Csiki v. Romania, no. 11273/05, § 78, 5 July 2011, and Floarea Pop v. Romania, no. 63101/00, §§ 22, 24 and 37, 6 April 2010). The lack of any fault in the hospital's handling of the matter, coupled with the developing domestic case-law concerning hospitals’ liability for medical acts (see paragraph 64 above), renders an action for compensation against the hospital too weak a remedy to be deemed effective.

The Court also notes the changes brought about in 2006 by Law no. 95/2006 which, in principle, would make it easier nowadays for victims of medical negligence to seek compensation in the absence of a finding of guilt (see Eugenia Lazăr, § 54, and Baldovin, § 27, judgments cited above). However, the Government did not argue that the applicant could still avail herself of these new provisions.

Lastly, the Court finds it relevant in the present case that the applicant did not remain passive, nor was her sole goal to have the doctor criminally punished (see, a contrario, Stihi Boos, cited above, §§ 51 and 65). She lodged a request with the College of Doctors and pursued a civil claim within the criminal proceedings. However, neither of these authorities offered her redress.

In these circumstances, it would be disproportionate to require her to lodge yet another action with the civil courts.

The foregoing considerations are sufficient to enable the Court to conclude that by not involving the applicant in the choice of medical treatment and by not informing her properly of the risks involved in the medical procedure, the applicant suffered an infringement of her right to private life.

Furthermore, the system in place as at the date of the facts of the present case made it impossible for the applicant to obtain redress for the infringement of her right to respect for her private life. The respondent State has therefore failed to comply with its positive obligations under Article 8 of the Convention.

For these reasons, the Court will dismiss the Government's objection and conclude that there has been a violation of Article 8 of the Convention.