THIRD SECTION

DECISION

Application no . 20192/07 E.M. and others against Romania

The European Court of Human Rights (Third Section), sitting on 12 June 2012 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Egbert Myjer , Ján Šikuta , Ineta Ziemele , Luis López Guerra , Kristina Pardalos , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 6 May 2007,

Having deliberated, decides as follows:

THE FACTS

1 . The applicants, E.M., C.M. and I.L.M., are Romanian nationals who were born in 1939, 1962 and 1964 respectively and live in Bucharest . The first applicant is the mother of the second and third applicant s . She was a nurse by profession.

A. The circumstances of the case

2 . The facts of the case, as submitted by the applicants, may be summarised as follows.

3 . Mr I.M., a reserve colonel ( colonel în rezervă ), was the first applicant ’ s husband and the second and third applicants ’ father. On 30 May 2005 he died in hospital, aged 73, following a surgical intervention and two-week convalescence.

1. Mr I.M. ’ s treatment and death in the hospital

4 . On 22 April 2005 Mr I.M. developed symptoms of icterus and went, together with the applicants, to the Military Clinic for a consultation. He underwent some tests and was immediately admitted to the “Carol Davila” Central Emergency Military Hospital (“the hospital”) for further investigations and treatment. His diagnosis was “ cholestatic jaundice due to cholestatic calculus – left renal lithiasis clinically significant for approximately three days” ( icter colestatic prin calcul colestatic – de circa trei zile litiază renală stânga ). Neither the applicant nor his family was informed of the diagnosis.

An ultrasound scan performed that evening in the hospital revealed a pancreatic tumour, and the patient was prescribed treatment by the doctor on duty, Dr C.D. After two days of treatment, the jaundice disappeared. The treatment continued for two more days.

5 . On 26 and 27 April 2005 Dr C.D. ordered further examinations of the patient ’ s abdomen, pancreas and bile ducts. He thus underwent a CT scan on 3 May 2005 and an ultrasound endoscopy on 6 May 2005. An MRI test was recommended but never carried out. Throughout this time, the applicants were at the hospital with the patient, but it appears that they did not receive any information from the medical team.

Dr C.D. conferred with his colleague Dr R.P. (a career officer) and decided, on the basis of the test results, that the patient probably had a pancreatic tumour which required surgical intervention.

According to the applicants, neither the patient nor his family was properly informed of the diagnosis, the nature of the intervention, its risks, or its actual duration. The medical team told them that they were going to perform a “classic” operation lasting about one and a half hours, and which had a 100% chance of success.

6 . On 18 May 2005 Dr R.P., assisted by Drs C.D., V.S., and S.V., and by the anaesthetist specialist Dr D.C. (another career officer), performed the surgery and removed the tumour along with parts of the patient ’ s pancreas, stomach and duodenum. The intervention lasted for some seven hours.

7 . The tests run after the surgery showed that the tumour had been benign.

8 . The applicant was placed in the intensive care unit under the supervision of Dr D.C. He remained there until his death. The applicants claim that they gave money to Dr D.C. to ensure that he provided proper care to the patient.

The family was not officially allowed access to the intensive care unit until two days before the patient ’ s death. For the first few days after the operation, the patient ’ s general state was stable. However, his general health started to deteriorate and he developed a high fever. He was prescribed broad spectrum antibiotics provided by his family, pending the results of further blood tests.

9 . On 26 May 2005 the blood tests revealed the presence of two types of bacteria: Klebsiella and Meticillin -resistant Staphylococcus.

10 . Meanwhile, his health continued to deteriorate and he finally went into a coma. He was in this state when, on 27 May 2005, Dr R.P. operated on him again to remove an abscess and some blood clots which had formed after the first operation.

At the family ’ s request, the hospital priest visited the patient after the operation but was unable to give him absolution as the patient was not capable of speaking with the cleric. According to the applicants, the sudden deterioration of his health after the intervention made it impossible for Mr I.M. and his wife to obtain the blessing of their civil marriage, which they had planned to do.

11 . On 28 May 2005 the applicants spoke with the anaesthetist on duty, who told them that Dr D.C. had left the hospital to attend an international congress. The doctor on duty acquainted the applicants with the patient ’ s real diagnosis and informed them of the type of intervention he had undergone on 18 May and of the suspicion of bacterial infection.

In the evening of 28 May 2005 the patient died of septic shock and multiple organ dysfunctions; he was taken to the hospital mortuary.

12 . The third applicant signed a discharge form provided by the hospital, which read as follows:

“... [we] request that no autopsy be performed as the cause of death is known and we have no complaints concerning the treatment and care provided by the medical and paramedical personnel.”

13 . The applicants collected the deceased ’ s personal belongings and found that the medicine they had brought to the hospital had not been administered to the patient.

2. Complaints lodged with the College of Doctors

14 . On 30 May 2005, while her father ’ s body was still in the hospital mortuary, the second applicant brought the case to the attention of the College of Doctors . She sent her complaint to both the Bucharest branch and the National Chamber of the College, by e-mail and normal post. She informed those bodies that her father had been infected with bacteria while in the intensive care unit of the hospital and asked that an autopsy be performed before the burial, which was scheduled for the next day.

15 . The Commission for Discipline of the Bucharest College of Doctors did not reply to their request for an autopsy but opened an investigation into the patient ’ s death. It heard the applicants and the doctors. It gave its decision on 12 October 2005. It ruled that no medical errors had been made, but reprimanded Dr R.P. for failure to seek the patient ’ s consent before the surgical intervention, as required by Law no. 46/2003.

16 . The applicants objected to the conclusions of the Commission and their appeal was heard by the Superior Commission for Discipline of the National College of Doctors.

17 . Drs S.V. and V.S. from the medical team that had performed the surgical intervention on 18 May 2005 made written statements to the effect that they had together sought the patient ’ s written consent before the intervention and that the consent form had been attached to the file. The head of the Surgery Department of the hospital gave a written statement that in that period no patients had been operated on without the consent forms being attached to their file. Dr I.P., a specialist doctor from a different hospital, was asked to comment on the treatment choices made by Dr R.P. He gave his opinion on 11 January 2006, stating that in general icterus was a condition that required surgical intervention under any circumstances, and that according to the guidelines the surgery performed in Mr I.M. ’ s case presented a certain risk but that risk was not increased by the patient ’ s age; he also considered that the post ‑ operative complication and the ensuing death fell within the generally accepted risks for such an intervention.

18 . On the basis of the evidence presented, on 7 July 2006 the National College of Doctors closed the disciplinary action against Dr R.P. It considered it established that the patient ’ s consent had been obtained but that the consent form had been lost.

19 . The second applicant lodged an action for the annulment of the decision adopted on 7 July 2006, pointing out that Drs R.P. and D.C. (the anaesthetist) had disregarded the patient ’ s rights and well-being in that they had failed to perform all necessary tests before the intervention, in particular an MRI scan, and had failed to inform the patient and the family of the real diagnosis and the risks of the intervention; she also contended that that the post-intervention care had been faulty. She reiterated that the patient had been infected with bacteria in the hospital, which in her opinion had contributed to his death.

20 . The Bucharest County Court heard the case as a single-judge bench. The applicants maintain that the judge admitted in the public hearing that she did not understand the medical terminology used in the various documents adduced before the court.

21 . On 14 March 2007 the County Court gave judgment in the case. It noted that a criminal investigation had taken place in the case, that the medical experts consulted by the prosecutor had expressed the opinion that the patient ’ s death had not been caused by medical error, and that on the basis of that opinion the case had been closed (see paragraph 26 below). It therefore dismissed the applicants ’ action and upheld the decision of the National College of Doctors.

22 . The second applicant appealed against the decision rendered by the County Court, but in a final decision of 23 November 2007 the Bucharest Court of Appeal dismissed the appeal and upheld the findings of the lower court.

3. Criminal complaint against the doctors

23 . On 14 June 2005 the second applicant lodged a criminal complaint against the doctors who had treated her father, naming in particular the two surgeons Drs R.P. and C.D. and the anaesthetist, Dr D.C. They addressed their complaint to the Prosecutor ’ s Office attached to the High Court of Cassation and Justice and the Bucharest Military Prosecutor ’ s Office. The latter opened an investigation into involuntary manslaughter in the case.

24 . Dr R.P. gave a statement before the military prosecutor. He maintained that the patient ’ s death had not been directly caused by the surgical intervention and that it had been impossible to establish the cause of death beyond doubt as the family had refused an autopsy. Dr D.C. declared that the patient had received adequate treatment and his death had not been caused by medical negligence.

25 . On 6 September 2005 the “Mina Minovici ” National Institute for Forensic Medicine (“the National Forensic Institute”) issued an expert medical report in the case. It took account of the patient ’ s medical log during his stay in the hospital and of the opinion expressed in general terms about Mr I.M ’ s condition by Dr B.M., a specialist surgeon at a different hospital from the one where the patient had been treated. It concluded that the cause of death had been multiple organ failure and sepsis occurring during the evolution of a post-surgical-intervention abscess. It considered that the treatment had been appropriate and had been applied without medical errors.

26 . On the basis of the conclusions of the expert medical report, on 13 October 2005 the prosecutor decided not to prosecute Drs R.P. and C.D.

27 . The first and second applicant objected to the outcome of the prosecutor ’ s investigation. They pointed out, notably, that the expert medical report had failed to examine the question of the bacterial infection contracted in the hospital and that the prosecutor had not taken account of the absence of consent for the surgery.

28 . On 8 December 2005 the Prosecutor in Chief of the Bucharest Military Prosecutor ’ s Office dismissed the above-mentioned complaints, finding, in particular, that the expert medical report had not confirmed the applicants ’ assertions.

As the applicants had declared during the investigation that Dr D.C. had told them that he could not provide the patient with proper care as he had only received a gift of 1,000,000 Romanian lei (ROL) from the applicants for an intervention that had lasted seven hours, the prosecutor asked the National Department for the Fight against Corruption (“the DNA”) to investigate these allegations of bribery. The applicants were called to give statements regarding the alleged crime of corruption; they declared that they had paid a further ROL 3,000,000 to Dr D.C. and ROL 500,000 to a nurse. They nevertheless stated that they were not interested in having the doctors convicted for corruption, but rather that they wanted the medical responsibility for Mr I.M. ’ s death to be established. The medical personnel denied having received any bribes from the patient ’ s family. On the basis of the material gathered, the DNA concluded on 8 February 2006 that there was not enough evidence to substantiate the allegations of bribery.

29 . Meanwhile, the applicants lodged a complaint against the decision of 8 December 2005 with the Bucharest Military Court ; as they acquainted themselves with the expert medical report, they raised several objections to it and asked that the case be remitted to the prosecutor for further investigation. On 7 April 2006 the court dismissed their complaint as ill ‑ founded, on the basis of the medical report of 6 September 2005.

30 . The second applicant appealed against that decision. She contested the accuracy of the expert medical report, stating that Dr B.M. was not an accredited medical expert, and that the conclusions of the report were erroneous. She requested that a new expert examination be performed. She also complained that the applicants had been informed at the hospital of a different diagnosis from that appearing on the official documents presented by the hospital as evidence, and that it had been only in view of the erroneous diagnosis that her brother had signed the discharge form concerning the autopsy. In any case, she considered that her father ’ s death had been suspicious, as it had followed what appeared to be a good recovery; moreover, since the presence of “hospital bacteria” had been determined, an autopsy should have been performed with or without the family ’ s endorsement. She also pointed out in this connection that as soon as they had become aware of the misrepresentation by the hospital the applicants had appealed to the College of Doctors to demand an autopsy in the case.

The second applicant emphasised the absence of informed consent by the patient or his family before the intervention and pointed out that such failure on the part of the hospital had precluded them from taking informed decisions, including seeking a second opinion from a specialist doctor.

31 . In a final decision of 6 November 2006 the Bucharest Territorial Military Court dismissed the appeal by a majority of two judges. The court referred to the conclusions reached by the College of Doctors , which, in its opinion, had given an exhaustive account of the facts and was better placed than the courts to give a specialist opinion. It had based its conclusion on the Articles of the Code of Criminal Procedure regulating expert opinions.

The minority judge pointed out that the courts had failed to take into account the objections raised by the applicants concerning the expert medical report. It also noted that the doctors involved had not been heard by the courts, their statements being no more than extra-judiciary declarations.

4. Other complaints

32 . On 30 May 2005 the second applicant forwarded to the Ministry of Defence a copy of the complaint she had sent to the College of Doctors on the same day. The Ministry of Defence was responsible for the administration of the hospital. Later on she extended the complaint, claiming also that the hospital had failed to provide the patient with clerical assistance when he was dying.

33 . On 14 and 30 June 2005 the Medical Department of the Ministry of Defence replied to the second applicant ’ s complaint. It informed her that the medical treatment given to her father had been adequate and that the surgical intervention performed fell within the generally accepted range for risk of complications and fatality, given the patient ’ s age (73 years) and medical history. It also stated that the procedures for sterilisation of instruments in the hospital were in accordance with the existing guidelines and was beyond reproach. It also informed the applicant that as the hospital provided a religious service, an oral request to the medical personnel was all that was required for any patient to benefit from the assistance of a priest.

B. Relevant domestic law

34 . Law no. 46/2003 on patient ’ s rights expressly states that there is an obligation to inform a patient about any surgical intervention proposed, the risks involved in the intervention, alternative treatment, and the diagnosis and prognosis (Article 6). The Law also regulates the patient ’ s right to seek a second medical opinion (Article 11). In its Article 34 the Law provides for a patient to give money or make donations to the medical personnel for the care received, but forbids the personnel from extorting such payments from their patients.

According to Article 37 of that Law, a breach of a patient ’ s rights may engage disciplinary or criminal action, depending on the applicable law.

35 . The judgement delivered in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic case ‑ law and practice concerning the delivery of expert medico ‑ legal reports and the authorities competent for their issuance, as well as the relevant domestic case-law and practice concerning the civil liability of medical staff.

COMPLAINTS

36 . The applicants complained under Article 2 of the Convention about Mr I.M. ’ s death. Furthermore, they considered that the doctors had failed to establish a conclusive diagnosis, as they had not performed all the necessary tests before the surgical intervention (in particular an MRI scan); they had concealed the reality from the patient and from his family; and they had failed to obtain informed consent for the operation. After the intervention the medical care had not been satisfactory and the treatment had not been administered as it should have been. They also pointed out that although they had given money to the medical personnel in order to ensure adequate care, such care had not been provided. They reiterated that Mr I.M. had been infected in the hospital with lethal bacteria, which proved negligence with respect to hygiene in the hospital and directly engaged the State ’ s responsibility for his death. They argued that the State was responsible for the medical care in public hospitals, such as in the current case.

Under the same Article they complained that the criminal investigation into the death of the patient had been ineffective, incomplete and superficial. The military prosecutor had failed to establish responsibility for the death, had not heard neutral witnesses, but limited the interrogations to hospital personnel, and had concealed the expert medical report from the applicants. They reiterated their objections to that report and pointed out that their arguments had received no response from the domestic courts.

They also complained that the military prosecutor and the military judges were of a lower rank than the deceased, in violation of the rules governing competence.

They also considered that the inquiry by the College of Doctors had been ineffective, had favoured the medical personnel and had not allowed the applicants to present their point of view.

They advanced the argument that the non-existence of specialised courts to deal with such cases constituted a significant flaw in the system, and pointed to the admission by the civil court judge to not understanding the medical terminology used in the case.

37 . The applicants considered that the manner in which Mr I.M. and they themselves had been treated by the medical personnel amounted to ill ‑ treatment, in breach of Article 3 of the Convention.

38 . The applicants considered that the fact that Mr I.M. had not been properly informed of his diagnosis and the risks of the intervention amounted to a breach of his right to security protected by Article 5 of the Convention.

39 . For the same reasons as those invoked under Article 2 above, the applicants considered that they had not had a fair trial either before the criminal courts or the civil courts, in breach of Article 6 of the Convention. As the courts had failed to establish medical error, the applicants had been left without any means of claiming damages for the loss incurred.

40 . The applicants further considered that the failure on the part of the hospital to inform them properly of the diagnosis, the risks of the intervention and the treatment administered to the patient had breached their and Mr I.M. ’ s right to respect for their private and family life, recognised under Article 8 of the Convention.

41 . The applicants complained that as the doctors had concealed the real medical problems, it had not been possible for the patient to see a priest before his death and he had been prevented from obtaining the blessing of his civil marriage with his wife, the first applicant, which they had planned to do. They relied on Article 9 of the Convention.

42 . The applicants considered that the lack of information about the diagnosis and treatment had breached Mr I.M. ’ s right to form an opinion, in violation of Article 10 of the Convention.

43 . Lastly, under Article 14 of the Convention the applicants considered that Mr I.M. had been discriminated against on the basis of his age and financial situation. In particular, they argued that it was only the applicant ’ s age that had encouraged the doctors to perform such a risky and unnecessary intervention without fully explaining its risk to the patient and his family. Furthermore, they stated that the level of care received by a patient was directly connected to the amount of money the patient ’ s family gave to the doctors.

THE LAW

A . Complaints under A rticles 2, 3, 6, 8, 10 and 14 of the C onvention

44 . The applicants complained, under various Articles of the Convention, about the treatment received by Mr I.M. in the hospital, the manner in which the medical personnel had handled his case, and the investigations into his death.

45 . The Court , being master of the characterisation to be given in law to the facts, considers that the applicant s ’ allegations should be examined solely under Article 2 of the Convention , which, in so far as relevant, read s as follows:

“1. Everyone ’ s right to life shall be protected by law. ...”

46 . T he Court considers that it cannot determine the admissibility of these complaints on the basis of the case file, and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

B. Other complaints

47 . The Court has examined the remaining complaints. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, it finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Decides to adjourn t he examination of the applicant s ’ complaints under Article 2 of the Convention ;

Declares the remainder of the application inadmissible.

Marialena Tsirli Josep Casadevall              Deputy Registrar              President