FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 37602/97 by Nelina SIEMIŃSKA against Poland

The European Court of Human Rights (Fourth Section) , sitting on 29 March 2001 as a Chamber composed of

Mr G. Ress , President , Mr A. Pastor Ridruejo , Mr L. Caflisch , Mr I. Cabral Barreto ,

Mr V. Butkevych , Mrs N. Vajić , Mr M. Pellonpää , judges [Note1] ,

and Mr V. Berger , Section Registrar ,

Having regard to the above application introduced with the European Commission of Human Rights on 5 June 1996 and registered on 2 September 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having deliberated, decides as follows:

THE FACTS

The applicant is a Polish citizen born in 1943, residing in Łódź .

A. The circumstances of the case

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

On 20 May 1995 in the morning the applicant’s husband lost consciousness. The applicant’s neighbour called an ambulance from the local emergency station. As it was not equipped with necessary resuscitation appliances, a second one was called. Despite resuscitation measures taken by the doctor, the applicant’s husband died at 10.45 a.m.

On 12 July 1995 the applicant requested that criminal proceedings be instituted against the medical personnel involved in the incident, alleging that they had been negligent in dealing with her husband.

On 6 September 1995 the Łódź District Prosecutor discontinued the investigation finding that no criminal offence had been committed. It had been established that the ambulance had been called by the applicant’s neighbour who had failed to inform the dispatchers at the local emergency station that the applicant’s husband had an infarctus in 1990 and that he had been unconscious. Immediately after the ambulance arrived at 9.48 a.m., the physician had ordered at 10.02 a.m. that a resuscitation ambulance be called. This ambulance arrived at 10.08 a.m. and resuscitation measures had been taken, to no avail.

The applicant filed an appeal with Łódź Regional Prosecutor against this decision.

On 18 October 1995 the Łódź Regional Prosecutor quashed the decision under appeal, considering that the evidence gathered in the case had to be completed. In particular, copies of the dispatching documents of the emergency station on which the lower prosecutor had relied, were unreadable and nothing could reasonably have been established on this basis in respect of the exact time when the ambulance had been called and when the applicant had urged the station to speed up their action. There were also certain discrepancies between these documents, which had not been explained. Moreover, the neighbour who had first called the ambulance should have been questioned. The prosecutor emphasised that the dispatching document had shown that the first call referred to the applicant’s husband as  “dying”. Thus, it was necessary to establish why an ordinary ambulance had been sent to a person qualified as dying. It was further necessary to find exact times when the applicant and her neighbours had called the emergency station. Moreover, it was necessary to explain whether it was indeed the case that under existing regulations only a physician was entitled to call a resuscitation ambulance.

On 14 December 1995 Łódź District Prosecutor again discontinued the investigations. It was established that on 20 May 1995 the applicant’s neighbour called the ambulance. As the applicant was in a state of shock, she did not give precise information concerning her husband’s state. The neighbour was consequently unable to provide details as to his medical past. J.M., dispatcher at the emergency station, noted information she obtained stating that the applicant’s husband was “dying and conscious”. A decision was taken by two dispatchers E.W. and A.T. to send an ordinary ambulance. It was noted that a regulation was in force at that time which allowed for dispatching a resuscitation ambulance only on the order of a physician. Exceptions from this rule were allowed only if the calling person provided medical details allowing for such a decision. The ambulance left the station at 9.48 a.m. and arrived at the applicant’s address at 10 a.m. In the meantime, at 9.50 approximately, the applicant’s neighbour had urged the emergency services to send the ambulance. After the ambulance arrived, physician G.B. ordered the driver at 10.02 to call a resuscitation ambulance and proceeded to the resuscitation with the equipment available at the ordinary ambulance. The resuscitation ambulance arrived at 10.08. Subsequently, further resuscitation efforts had been made with the use of a special cardiological equipment, but to no avail. At 10.45 a.m. the applicant’s husband died. The prosecutor concluded that in the light of the evidence there were no grounds on which to find that the medical staff was negligent or too slow in their actions in such a manner as could contribute to the applicant’s husband’s death.

The applicant appealed again, complaining that the evidence taken during the investigations was insufficient for the proceedings to be discontinued.

On 31 January 1996 the Łódź Regional Prosecutor upheld the decision of 14 December 1995, considering that in the light of the evidence there were no grounds on which to accept that the staff of the emergency station had acted in breach of any regulations in force at the material time. It was true that certain doubts could be expressed as regards the fact that no resuscitation ambulance had been sent after the second phone call by which the applicant’s neighbour provided more detailed information about the state of the applicant’s husband. However, on the whole, the manner in which the staff had acted confirmed the conclusion of the lower prosecutor that they had no case to answer.

The applicant subsequently requested the Appellate Prosecutor to reopen the proceedings, to no avail. The prosecutor, in its letter of 5 April 1996 stated that the case-file had been re-examined. It was further emphasised that the first ambulance was called at 9.45 a.m. approximately, it left the station at 9.48 a.m. and arrived at the applicant’s address at 9:55. The second ambulance, carrying resuscitation equipment, was called at 10.02 a.m. and arrived at 10.08. There were numerous documents concerning the calling, dispatching and arrival of the ambulances and a number of persons were involved in making these documents. They were acting independently in this respect. This in itself cast doubt on the applicant’s arguments that the relevant documents had been forged so that the staff could evade criminal responsibility. The evidence given by the applicant’s neighbours corresponded with the conclusions which had been drawn from the testimony of other witnesses. The evidence was also concordant in that the applicant’s neighbour, in the first phone call for the ambulance to be sent did not give details concerning the state of the applicant’s husband at that time, which in turn entailed a decision to send the ordinary ambulance.

B. Relevant domestic law and practice

The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of the Chambers is mandatory. Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Disciplinary Court are elected by the National Congress of Physicians, composed of delegates of local chambers.

Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking out of the register of physicians.

The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989.

Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. While investigating such a complaint, the agent may question physicians charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which he or she deems relevant.

If information existing at the time the investigations are instituted, or gathered in the course thereof, is sufficient to charge a physician with professional misconduct, the  agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of the alleged offence and written grounds.

Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered does not suffice for drawing up a motion for a penalty to be imposed.

A complainant may lodge an appeal against that decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Disciplinary Court.

Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date.

Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent’s decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file but the agent can limit this access to documents that are not covered by medical confidentiality.

Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians.

Under Article 417 of the Polish Civil Code, the State and local municipalities are liable for damage caused by its agents in the exercise of their functions. There is established case-law of Polish courts to the effect that this liability of the State includes also liability for damages caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.

COMPLAINT

The applicant complains invoking Article 2 of the Convention that her husband died as a result of negligence of the staff of the emergency station who dealt with his case. She argues in particular that the manner in which the staff of the emergency station responded to the calls for the ambulance did not correspond to her husband’s condition, as a special resuscitation ambulance should have been dispatched. Had such an ambulance been sent immediately, her husband’s life could have been saved.

THE LAW

The applicant complains, invoking Article 2 of the Convention, that her husband died as a result of the negligence of the staff who dealt with his case.

Article 2 of the Convention, insofar as relevant, reads:

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

The Court recalls that the first sentence of Article 2 obliges the States not only to refrain from "intentionally" causing death, but also to take adequate measures to protect life. The Court considers that Article 2 of the Convention imposes that, even in cases such as the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims (see Kaya v. Turkey judgment of 19 February 1998, Reports of judgments and decisions for 1998, § 86; Ergi v. Turkey judgment of 18 July 1998, Reports 1998, § 82, and Yasa v. Turkey judgment of 2 September 1998, Reports 1998, §§ 98 ‑ 100); Erikson v. Italy ( dec ), no. 37900/97, 26.10.1999).

In particular, the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. The procedural element contained in Article 2 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. If there is no indication that the authorities arbitrarily assessed the evidence before them, the Court must rely on the facts established by those authorities (see no. 20948/92, European Commission HR, decision of 22 May 1995, DR 81, p. 40; cf. also no. 23412/94, decision of 30 August 1994, DR 79-A, pp. 127, 135-137; Valesano v.Italy ( dec ), no. 42380/98, 31 August 1999).

The Court observes that, following her husband’s death, the applicant requested the prosecutor to investigate the relevant circumstances. These circumstances related in particular to the manner in which the phone calls for an ambulance to be sent had been handled by the staff of the emergency station in Łódź .

By a decision of 6 September 1995, the prosecutor discontinued the investigations, having regard to the testimony of witnesses and to documentary evidence. The applicant appealed against that decision, challenging the conclusions as to the facts established by the prosecuting authorities. The higher prosecutor allowed her appeal, pointing to certain inadequacies in the taking of evidence. Subsequently, the prosecuting authorities, in compliance with the suggestions of the higher prosecutor, took further evidence and, having again analysed the circumstances of the case, found that no criminal offence had been committed. Finally, after the decision to discontinue the proceedings was given, the case-file was, at the applicant’s request, re-examined by a higher prosecutor who found no grounds on which to re-open the investigations.

The Court further observes that it was open to the applicant to bring a civil action in tort against the State Treasury, seeking compensation for her husband’s death. She could also have instituted proceedings in order to establish disciplinary responsibility of the medical practitioners concerned by initiating a procedure provided for by the laws governing the professional liability of physicians. The Court notes that under the applicable provisions, membership of the Chambers of Physicians, charged under these provisions with the task of conducting such proceedings and giving binding decisions in this respect, is mandatory for all physicians, including those employed in medical care units run by the State and by local municipal authorities ( Skraskowski v. Poland (dec.), no. 36420/94, 6 April 2000).

In the light of the above, the Court finds no indication that there has been any failure to provide a mechanism whereby criminal, disciplinary or civil responsibility of persons who may be held answerable could be established.

The Court further finds no indication that the prosecuting authorities arbitrarily assessed the evidence at their disposal. However, the Court notes in this respect that the prosecuting authorities, in their decision of 14 December 1995, relied on regulations which allegedly allowed for dispatching a resuscitation ambulance only on the order of a physician. The Court observes that it was not established which authority had enacted these regulations. Nor was any reference made in the decision allowing to establish the scope of application of such regulation, or of their exact contents. However, in the circumstances of the case, and in particular in the light of a very short lapse of time between the moment when, first, the ordinary ambulance left the emergency station and, later, the resuscitation ambulance, the Court considers that this failure to establish the actual contents and source of these regulations does not negatively affect the credibility of the findings made by the prosecuting authorities.

Given that no fresh evidence has been brought before the Court, it must rely on the facts established at the domestic level. In the circumstances of the present case, it cannot find any appearance of negligence on the part of the staff involved. Accordingly, there is no appearance of a violation of Article 2 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Vincent Berger Georg Ress Registrar President

[Note1] Judges names are to be followed by a COMMA and a MANUAL LINE BREAK ( Shift+Enter ). When inserting names via Alt+S please remove the substitute judge’s name, if necessary, and the extra paragraph return(s). (There is to be no extra space between the judges’ names and that of the Registrar.)