Medical negligence and liability of health professionals
II. RELEVANT DOMESTIC LAW 53. The relevant legal provisions and the domestic case-law and practice concerning the delivery of forensic reports, as well as the liability of medical staff, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010). 54. Law no. 95/2006 introduced the notion of medical negligence as a basis for the establishment of liability of medical staff and created an obligation on them to obtain insurance for any civil liability resulting from their work (see Eugenia Lazăr, cited above, § 54). The civil responsibility for the damage caused is personal and proportionate to the degree of responsibility (Article 643 ). The Regulations adopted on 14 March 2007 by the Ministry of Health (“the Regulations”) provided that the liability must be established by a court (Article 3 § 2). Doctors have a legal obligation to insure themselves against claims of malpractice (Article 656). Under Article 662, damages are paid to the patient if the parties reach an agreement or, in the absence of such an agreement, if the doctor ’ s liability is established by a court. 55. A series of laws concerning the public health service and patients ’ rights establishes an obligation to inform a patient about any surgical procedure proposed, the risks involved in the procedure, alternative treatment, and diagnosis and prognosis: Laws nos. 3/1978 and 306/2004 on public health insurance; Law no. 74/1995 on the establishment and functioning of the College of Doctors; Law no. 46/2003 on patients ’ rights (“Law no. 46/2003”); and Law no. 95/2006 on reform of the medical sector (“Law no. 95/2006”). 56. Under Article 37 of Law no. 46/2003, a breach of a patient ’ s right to be informed and consulted may entail disciplinary or criminal action against the medical practitioner, depending on the applicable law. The Law also regulates the patient ’ s right to seek a second medical opinion ( section 11). 57. The relevant provisions of the CCP in force at the time of the pertinent facts read as follows: Article 15 “A person who has suffered civil damage may join the criminal proceedings ... He or she may do so either during the criminal investigation ... or before the court ...” Article 19 “(1) If a victim has not joined criminal proceedings as a civil party, he or she can initiate separate proceedings before the civil courts for damages arising from the offence. (2) Civil proceedings shall be stayed pending a final judgment of the criminal courts. (3) A victim who has joined criminal proceedings as a civil party may also initiate separate civil proceedings if the criminal proceedings are stayed. If the criminal proceedings are reopened the civil proceedings opened before the civil courts shall be stayed. (4) A victim who has initiated civil proceedings before a civil court may abandon these proceedings and lodge a request with the investigating authorities or the trial court if criminal proceedings have subsequently been opened...The civil proceedings may not be abandoned if the civil court has delivered a judgment, even if the judgment is not a final one.” Article 22 “The findings contained in the final judgment of a criminal court concerning the issue of whether the act in question was committed and the identification of the perpetrator and establishment of his or her guilt are binding on a civil court when it examines the civil consequences of the criminal act.” Article 346 “(1) In the event of a conviction or an acquittal, or the termination of a criminal trial, the court shall deliver a judgment in which it also decides on the civil action. (2) Where acquittal has been pronounced ... because one of the constitutive elements of an unlawful act is missing, the court may award pecuniary and non-pecuniary damages in accordance with civil law.” THE LAW I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION 58. Relying on Article 6 § 1 of the Convention, the applicants complained that the investigation into the circumstances of the death of their son had been ineffective. 59. The Court is the master of the characterisation to be given in law to the facts and can decide to examine complaints submitted to it under another Article than that quoted by the applicant (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998 ‑ I). It will therefore examine the complaint under Article 2 of the Convention ( see Istrățoiu v. Romania (dec.), no. 56556/10, § 56, 27 January 2015 ), which reads as follows: “1. Everyone ’ s right to life shall be protected by law ...” A. Admissibility 60. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the applicants should have continued the separate general action in tort against the doctors or other persons they considered responsible for the death of their son after their civil claim joined to the criminal proceedings had been dismissed by the Brăila County Court on 22 December 2011. They pointed out that the applicants had given up their separate civil action on 6 March 2013. 61. The Government supported their arguments that proceedings under the general law of tort would have been an effective remedy in the circumstances of the case by referring to the Court ’ s findings in the cases of Codarcea v. Romania ( no. 31675/04, §§ 38-48, 2 June 2009 ), Stihi ‑ Boos v. Romania (dec.) ( no. 7823/06, §§ 42-43, 11 October 2011 ) and Floarea Pop v. Romania ( no. 63101/00, § 47, 6 April 2010 ). 62. The applicants contested the Government ’ s position. They argued that immediately after their son ’ s death they had lodged disciplinary and criminal complaints, to which they had attached a civil claim. After a few months, as they had considered that the criminal investigation had been too slow and they had become afraid that their civil action would have become time-barred, they had lodged a separate action in tort. However, their compensation in the separate civil action depended on the findings of the criminal courts. Moreover, the criminal courts dismissed their civil complaint lodged together with the criminal complaint. Therefore, as the criminal courts had found no negligence in the pre - and post- operative treatment of their son, they had given up the separate civil action. 63. The Court considers that the Government ’ s objection is closely linked to the substance of the applicants ’ complaints. It therefore joins the objection to the merits of the case. 64. It also notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 1. The parties ’ submissions 65. The applicants complained that the criminal investigation into the death of their son had been ineffective and had exceeded a reasonable time. They claimed in particular that the domestic prosecuting authorities and courts had not exercised their active role nor examined whether P.V.I., the nurse in charge of the post- operative monitoring of the child, and Dr C.B., who performed the operation, had carried out their professional duties. 66. The applicants also contended that they did not agree with the Government ’ s submissions that the findings of the forensic report stating that the cause of death had been the deflation of the catheter ’ s balloon could have been rebutted by statements of witnesses and defendants. Moreover, they pointed out that the investigation performed by the prosecuting authorities had been ineffective as despite the findings of the National College of Doctors and of the forensic experts they had decided to discontinue the criminal proceedings against Dr P.A. and had not examined at all the liability of Dr C.B. and P.V.I. 67. The applicants also reiterated that they had not been informed about the nature and the risks of the procedure and accordingly they had not given their informed consent in writing as requested by law, neither for surgery nor for the general anaesthesia. 68. The Government contended that the criminal investigation had been comprehensive and thorough, in compliance with the requirements of Article 2 of the Convention. The measures taken by the authorities had been appropriate and sufficient to comply with the requirements of Article 2 of the Convention. 69. The Government considered that the present case differed significantly from Eugenia Lazăr ( cited above ). They pointed out that while in the latter case the superior commission of the Mina Minovici Institute had not been able to produce a new reasoned report to clarify contradictions between different forensic reports, in the present case the only contradictions that could be seen were between medical forensic documents on the one hand, and the documents drafted in the disciplinary proceedings and the witnesses ’ statements on the other. 70. According to the Government, the domestic courts examined all the evidence in the file and could not find beyond any reasonable doubt that Dr P.A. had been negligent in performing his duties. Moreover, Dr P.A. ’ s departures from established procedures were identified and sanctioned by the disciplinary bodies. 71. For the reasons above, they concluded that the State ’ s responsibility could not be engaged under Article 2 of the Convention. 2. The Court ’ s assessment (a) General principles 72. The Court reiterates that the positive obligations imposed on the State by Article 2 of the Convention imply an obligation to put in place an efficient and independent judicial system by which the cause of death of an individual under the responsibility of health -care professionals can be established, whether they are working in the public sector or employed in private organisations, and, if necessary, to ensure accountability for their actions (see, in particular, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002 ‑ I). 73. Although it cannot be inferred from the foregoing that Article 2 may entail the right to have third parties prosecuted or sentenced for a criminal offence (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 238, ECHR 2016), the Court has stated on a number of occasions that an effective judicial system, as required by Article 2, may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged. However, the obligations of the State under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice within a time-span such that the courts can complete their examination of the merits of each individual case (see Calvelli and Ciglio, cited above §§ 51-53; Vo v. France [GC], no. 53924/00, §§ 89-90, ECHR 2004 ‑ VIII, and Byrzykowski v. Poland, no. 11562/05, § 105, 27 June 2006 ). 74. The requirements of an effective investigation also include, among other things, the need for “thoroughness”, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident (see Elena Cojocaru v. Romania, no. 74114/12, § 113, 22 March 2016 ). (b) Application of the general principles to the present case 75. Turning to the facts of the present case the Court notes that following the operation performed by Dr C.B. under general anaesthetic administered by Dr P.A., the applicants ’ son lost his life in hospital. 76. A criminal investigation was opened. The investigating authorities ordered an autopsy and took statements from the two doctors and the applicants. This preliminary investigation ended in decisions by the prosecuting authorities on 30 September and 10 November 2008 not to commence criminal proceedings against Dr P.A. as no medical error by him had been found (see paragraph 34 above). The prosecutors did not assess the liability of Dr C.B. concerning his medical conduct. 77. On 25 February 2009 these prosecuting authorities ’ decisions were quashed by the Brăila District Court and the opening of criminal proceedings against Dr P.A. was ordered. The District Court observed that the investigating authorities had ignored the conclusions of the committee of the National College of Doctors, which had noted irregularities in the post ‑ operative monitoring of the child (see paragraph 35 above). 78. The Court, like the domestic investigation authorities, notes significant discrepancies among the different forensic medical reports drafted during the criminal prosecution. The result was that the investigating authorities considered that a new forensic report was necessary for the determination of the cause of death (see paragraphs 28 and 31 above). 79. The applicants and Dr P.A. forwarded questions to be answered by forensic experts. These questions were relevant and in answering them the forensic authorities could have helped shed light on the unfortunate events that led to the applicants ’ loss. 80. However, their requests to the Mina Minovici National Forensic Institute for a forensic report were rejected as the applicable law did not allow for a new forensic report to be commissioned, as the Forensic Institute had already given its opinion on the case. 81. The Court has already identified shortcomings in the Romanian legal system in this respect. In the Eugenia Lazăr case it considered in particular that the very existence in domestic law of provisions authorising the forensic medical institutes to ignore requests by the judicial authorities was not compatible with the State ’ s primary duty to secure the right to life by putting in place an appropriate legal and administrative framework to establish the cause of death of an individual under the responsibility of health-care professionals (see Eugenia Lazăr, cited above, § 80 ). 82. For the Court, only a detailed and scientifically substantiated report containing reasons for the contradictions between the lower institutes ’ opinions and answers to the questions put by the prosecuting authorities and the applicants would have been capable of inspiring public confidence in the administration of justice and assisting the judicial authorities in discharging their duties. 83. Moreover, the Court notes that the investigating authorities never elucidated whether P.V.I. (the attending nurse) had diligently carried out her duties during the post-operative monitoring of the child. In this respect the Court points out that according to the forensic reports one of the main hypotheses for the presence of blood in the child ’ s lungs was the deflation of the balloon of the catheter (whose role had been to prevent the ingress of blood into the child ’ s airways) while under the surveillance of either Dr P.A. or P.V.I. After P.V.I. had been heard as a witness immediately following the child ’ s death, she resigned from the hospital and left the country for Italy (see paragraph 37 above). The prosecuting authorities also dismissed the applicants ’ requests to extend the criminal proceedings and to investigate whether she could be held accountable for their son ’ s death (see paragraph 48 above). The Court notes that although her testimony was quite important in determining the cause of the child ’ s death no special measures had been taken by the authorities to identify her domicile in Italy to have her return to testify. 84. The applicants also complained about the alleged failure to obtain their informed written consent for the procedure. The Court has emphasised that it is important for individuals facing risks to their health to have access to information enabling them to assess those risks. It has held in particular that the Contracting States are bound to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable impact 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. As a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, and if, as in the instant case, those doctors work in a public hospital, the State Party concerned may be held directly liable under Article 8 for this failure to provide information (see Trocellier v. France (dec.), no 75725/01, § 4, ECHR 2006-XIV; Codarcea, cited above, § 105; and E.M. v. Romania (dec.), no. 20192/07, § 54, 3 June 2014 ). 85. The Court notes that domestic legislation expressly provided for the patient ’ s right to receive information sufficient to allow that patient to give, with a corollary obligation on the doctor to obtain, informed consent prior to a procedure involving any risk (see paragraphs 5 5-56 above). 86. In the Court ’ s opinion the informed consent of the parents in the present case was even more relevant given that the doctors involved in the applicants ’ son ’ s surgery could and should have been aware that the child suffered from serious congenital medical conditions which suggested that post-operative complications should have been envisaged. Therefore, these conditions should have imposed a careful examination of all available options. 87. However, although the disciplinary committees concurred that both the surgeon and the anaesthetist had failed, prior to the procedure, to obtain the applicants ’ informed written consent for the procedure (see paragraphs 16 and 21 above), the domestic courts found no medical negligence in the way the doctors had performed their professional duties. 88. The Court is not in a position to contradict the domestic courts ’ findings concerning the absence of criminal responsibility in respect of the doctors in the case. Still, it considers that for the assessment of the case it was relevant to examine whether the operation was carried out according to the rules of the medical profession and the safeguards created by the domestic system itself (see Csoma v. Romania, no. 8759/05, § 57, 15 January 2013). 89. Moreover, the Court observes that the death of the applicants ’ son occurred in November 2005 and that the final decision in the case was taken in May 2012, six years and a half later. However, the file does not suggest that such lengthy proceedings were justified by the circumstances of the case. 90. The Court reiterates in this respect that a requirement of promptness and reasonable expedition is implicit in the investigation of cases concerning death in a hospital setting. It had already held that the knowledge of facts and possible errors committed in the course of medical care should be established promptly in order to be disseminated to the medical staff of the institution concerned so as to prevent the repetition of similar errors and thereby contribute to the safety of users of all health services (see Byrzykowski, cited above, § 117). 91. Against this background, the Court recalls that after the death of their son, the applicants did not remain passive and asked that the real cause of death be properly established. They lodged a disciplinary complaint with the College of Doctors and attached a civil claim to a criminal complaint asking that those responsible be identified and held accountable for their son ’ s death (see paragraphs 15 and 22 above). 92. At the end of those proceedings, the applicants could have obtained, at least in theory, an assessment of, and compensation for, the damage suffered. However, neither of these solutions offered them redress. 93. Bearing in mind that the prosecuting authorities and the domestic criminal courts excluded medical negligence as a cause of death and dismissed their civil claim to be compensated for the damage suffered without providing additional reasons (see paragraph 47 above), although based on the same medical documents and reports with which the National College of Doctors had imposed disciplinary sanctions on both doctors involved in the intervention ( Dr C.B. and Dr P.A. ), the Court finds it even more difficult to see how the separate civil claim, lodged on 28 October 2008 (see paragraphs 50-52 above), could have been effective in practice in the applicants ’ particular situation. 94. The Court finally considers that, having pursued criminal investigations - which they had joined as civil parties (see paragraph 22 above) - for more than six years, it would be onerous to expect the applicants to continue the suspended civil proceedings. 95. In the light of the above considerations, the Court considers that the Government ’ s objection of non-exhaustion of available domestic remedies should be dismissed and that the applicants were not provided with effective legal procedures compatible with the procedural requirements of Article 2 of the Convention. 96. Therefore, there has been a violation of Article 2 of the Convention under its procedural limb. II. APPLICATION OF ARTICLE 41 OF THE CONVENTION 97. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 98. The applicants claimed EUR 195,000 in respect of non ‑ pecuniary damage. 99. The Government considered the claims excessive. 100. Having regard to all the circumstances of the present case, the Court accepts that the applicants must have suffered non-pecuniary damage which cannot be compensated solely by the finding of a violation. Making its assessment on an equitable basis, the Court awards the applicants jointly EUR 12,000 in respect of non-pecuniary damage. B. Costs and expenses 101. The applicants also claimed EUR 5,000 in total for the costs and expenses incurred before the domestic courts and the Court. However, they did not submit any documents to support their claim. 102. The Government objected to this claim and submitted that the applicants had not proved their claims. 103. According to the Court ’ s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. In the present case, regard being had to the documents in its possession and the above criteria, the Court rejects the claim for costs and expenses. C. Default interest 104. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
The Court held that there had been a violation of Article 2 (right to life) of the Convention under its procedural head, finding that there had not been a proper investigation into the death of the applicants’ son, for the following reasons in particular. First, the medical authorities had failed to provide an additional forensic report about the incident, even though one was necessary. Furthermore, the authorities had never established whether the supervising nurse had properly carried out her duties, even though these were highly relevant to the alleged cause of death. Moreover, the domestic courts had also found no medical negligence on behalf of the doctors – even though disciplinary tribunals had found that they had failed to obtain the applicants’ informed consent for the procedure, and this consent had been required under Romanian law. Finally, the proceedings had taken an unjustifiably long amount of time, given that six and a half years had elapsed between the death of the applicants’ son and the final decision in the case.