THIRD SECTION

DECISION

Application no. 72290/11 Yelena Georgiyevna ANDREYEVA against Russia

The European Court of Human Rights (Third Section), sitting on 18 May 2021 as a Committee composed of:

Georges Ravarani, President, Anja Seibert-Fohr, Andreas Zünd , judges, and Olga Chernishova, Deputy Section Registrar ,

Having regard to the above application lodged on 14 November 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Ms Yelena Georgiyevna Andreyeva , is a Russian national, who was born in 1951 and lives in Rostov-on-Don. She was granted legal aid. She is represented before the Court by Ms E. Svelitskaya , a lawyer practising in that town.

The Russian Government (“the Government”) were represented initially by Mr G. Matyushkin , Representative of the Russian Federation to the European Court of Human Rights, and then by his successor in that office, Mr M. Galperin.

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

The applicant ’ s daughter, Julia, was born in 1982. Since her childhood she suffered from a severe diabetes and concomitant illnesses. In 1994 she was attributed the most serious disability category. By the end of 2007 Julia ’ s condition included the first-type diabetes, insufficiency of many organs of urinal, endocrinal, cardiovascular and digestion systems. She had a renal disease, ischemic anaemia, coagulopathy and other illnesses.

On 22 December 2007, at about 7 a.m., Julia felt dizzy, her blood pressure dropped, while cardiac rhythm increased, she complained of pain in the heart area and in the back and short breath. She developed oedemas and started vomiting. The applicant called an ambulance at about 7.30 a.m. The ambulance team of a paramedic and a driver arrived within thirty minutes. The applicant submitted that they had not been duly equipped or staffed.

The applicant ’ s relatives and neighbours helped to transport Julia to the ambulance car which allegedly had no functioning heating system. In her journey to a hospital Julia was accompanied by the applicant and the applicant ’ s two sisters.

According to the applicant, the ambulance took Julia to the Regional Hospital no. 2 (“the Regional Hospital”), which refused to admit Julia. She had to wait about one hour in a cold car until she was sent to the Town Hospital No. 1 (the “ Semashko Hospital”).

Julia arrived at the Semashko Hospital at about 10.15 a.m. A doctor on duty examined her and concluded that she was in critical state. The doctor agreed to admit Julia to the hospital but warned the relatives that the hospital had no doctors specialising in nephrology and endocrinology, and no equipment for haemodialysis.

According to the applicant, the doctors acknowledged that Julia needed haemodialysis, but the hospital had not been equipped for that procedure. They also failed to give her “short-type” insulin, although information about recommended treatment was in her medical record and the applicant told doctors about the treatment her daughter needed. Her heart condition was not checked with electrocardiogram. The first lung x-ray examination was made twenty-seven hours after her admission to the hospital.

In the afternoon of 23 December 2007 Julia was transported to a different hospital. The next day symptoms of pneumonia appeared, and Julia lapsed into coma. She died on 25 December 2007.

On an unspecified date a Commission of the Rostov Regional Ministry of Health carried out an inquiry into the circumstances of Julia ’ s death. It concluded that the doctors of the Semashko hospital had treated Julia in line with medical guidelines and the requirements of domestic law. Owing to contradictions between certain pieces of evidence the Commission was unable to establish if the Regional Hospital had refused to admit Julia, or not.

In August 2008 the applicant lodged a criminal law complaint with the Pervomayskiy District Department of the interior, alleging that Julia had died because of medical negligence.

The investigative authority opened a pre-investigation inquiry into the incident. On 20 September 2008, 18 May and 20 June 2009 the investigators refused to open a criminal case, because “there had been no criminal event”.

On 28 March 2011 the applicant was informed that the case file had been lost and that the authorities had been taking measures to restore it.

On 14 May 2012 the investigators re-examined the applicant ’ s complaint and decided not to open a criminal case once again. They referred to the finding by the civil courts that Julia had received adequate medical assistance (see below).

On 17 May 2012 the above decision was overruled by the deputy head of the Pervomayskiy District prosecutor ’ s office in Rostov-on-Don, who noted that the investigators had failed to give legal assessment of the doctors ’ conduct. Three days later the Rostov Regional prosecutor ’ s office issued a decision stating that the investigation in the case had been deficient. There is no information about the subsequent developments in the case.

On 1 November 2008 the applicant lodged a claim with the Pervomayskiy District Court of Rostov-on-Don (“the District Court”) against medical authorities and hospitals involved in Julia ’ s treatment. She sought compensation of non-pecuniary damage for the death of her daughter. In support of her claims she produced various documents, including written statements of doctors and ambulance paramedic, ambulance routing record, and written statements of her sisters.

The defendants argued that the ambulance team had acted in accordance with the standards, was properly equipped and staffed; that according to the Regional Hospital ’ s logbook, that facility had not refused Julia ’ s admission; and that the doctors had provided her with appropriate medical assistance.

On 12 January 2009 the District Court at the applicant ’ s request heard her sisters, who confirmed the applicant ’ s version of the events.

The next day the District Court ordered a forensic medical examination into the quality of medical care which had been given to Julia. The examination had to be performed by the Bureau of Forensic Medical Examinations in the Rostov Region. Due to the subsequent refusal of the applicant to pay for that examination, on 23 June 2009, the District Court ordered the examination to be performed by other institution indicated by the applicant - the Centre of Forensic Examinations of the Ministry of Defence. On 12 October 2009 the latter refused to carry it out referring to the lack of competence in civil cases. The expert examination was entrusted to forensic bureau “ Sevzapexpert ”.

It was conducted by two experts. In their report of 16 April 2010, they stated that Julia had died of cardiac and respiratory insufficiency. There had been an indirect causal link between Julia ’ s death and the actions of the ambulance paramedic. There had been a direct causal link between the conduct of the doctors from the Regional Hospital, who had refused to admit Julia, and her death. The experts stated that Julia ’ s pneumonia could have been caused by her transportation in a cold car (other causes were not excluded either). The experts were unable to answer what would have happened if the hospitalisation had taken place an hour earlier. They further concluded that the emergency treatment in the Semashko Hospital had been inadequate and that there had been a direct causal link between that hospital ’ s doctors ’ negligence and Julia ’ s death.

The defendants objected to that report. They claimed that an additional examination was required, in view of the complexity of the case, and pointed at insufficient competence of the experts and the limited scope of their report. They also noted that the first report had been prepared without analysis of the histological sections of Julia ’ s tissues.

On 6 July 2010 the District Court ordered an additional forensic expert examination to be performed by the Bureau of Forensic Medical Examinations in the Stavropol Region.

The second expert report was prepared by fourteen doctors on 26 October 2010. They concluded that Julia ’ s death had been triggered by pneumonia which had started more than ten days before her hospitalisation. The report further concluded that actions of the paramedic had no relation to the death. The refusal of the Regional Hospital to admit Julia exacerbated her condition and hastened the unavoidable death. The report did not find that pneumonia could have been caused by the patient ’ s transportation, since it was a pre-existing medical condition. Hospitalisation by one hour earlier might have postponed death somewhat; however, the gravity of her condition did not leave her any chances of survival. Julia ’ s death was not related in any manner to the treatment at the Semashko Hospital.

At the request of the defendants, the court called and heard two experts in medicine, who submitted that the main cause of death was diabetes and various complications. Those conditions appeared long before the admission to the hospital. The treatment had been adequate.

The court also heard the ambulance paramedic, who “broadly” remembered the events in question. He said that Julia had been transported to the Regional Hospital which refused to admit her.

On 11 March 2011 the District Court dismissed the applicant ’ s claims. In the judgment it described the parties ’ position and conclusions of the two expert reports. The court noted that the expert reports contradicted each other in many respects. It found that the second report was admissible and reliable evidence, because it had been prepared by fourteen specialists in various medical fields, as well as the ambulance team doctors, and because it included a separate histological analysis .

On the contrary, the first expert report, in the opinion of the court, was not reliable, because the two experts had not examined the histological sections, and, therefore, had been unable to establish convincingly the cause of death, which was an essential element of the applicant ’ s claim.

The court also referred to the testimony of two experts who confirmed the conclusions of the second expert report.

The court further noted that the applicant had failed to prove that the Regional Hospital had refused to admit Julia. It also questioned the paramedic ’ s statements reliability, noting the time lapsed and the lack of details about the identity or competence of the person who had refused admission.

Overall, the court endorsed the conclusions of the second expert report. It found that pneumonia had appeared before 22 December 2007 and had no relation to the conditions of transportation. There was no evidence that the ambulance car had been improperly equipped or technically unfit.

The applicant appealed against that judgment. Her appeal was dismissed by the Rostov Regional Court on 26 May 2011.

COMPLAINTS

The applicant complained under Articles 2 and 3 of the Convention that her daughter had suffered and died as a result of medical negligence.

She also complained under Articles 6 and 13 of the Convention that the circumstances of the death had not been properly investigated.

Lastly, she alleged that there had been a violation of Article 14 of the Convention.

THE LAW

While complaining about medical negligence and ineffective judicial response into it, the applicant relied on Articles 2, 3, 6 and 13 of the Convention. Having regard to its well-established case-law (see Šilih v. Slovenia [GC], no. 71463/01, § 216, 9 April 2009; Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 154, ECHR 2014; and Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 214-38, 19 December 2017) the Court will examine the complaints under substantive and procedural limbs of Article 2 of the Convention, which in the relevant part reads as follows:

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

The Government claimed that the complaints were manifestly ill ‑ founded. They argued that Julia had been provided with adequate medical assistance. As regards the investigation into the incident, the Government observed that the positive obligations under Article 2 of the Convention in the specific sphere of medical negligence may be satisfied if the legal system affords victims a remedy in the civil courts. They stated that the domestic courts had duly examined the case and complied with the requirements of Article 6 of the Convention.

The applicant maintained her complaints. She alleged that her daughter ’ s death had been a result of the Regional Hospital to admit her for treatment and the subsequent failure of the doctors to diagnose her condition in a timely fashion and to treat it appropriately. The applicant stated that her allegations had not been investigated effectively. As regards the civil proceedings, the applicant alleged that the District Court had been biased, because it dismissed the evidence of medical negligence without good reasons. Lastly, according to the applicant, the experts from the Bureau of Forensic Medical Examinations in the Stavropol Region had not been independent, because they belonged to the system of healthcare.

(a) Positive obligations

The general principles governing the assessment of whether a Contracting State can bear direct liability under Article 2 of the Convention for allegedly deficient healthcare were restated by the Court in the case of Lopes de Sousa Fernandes (cited above, §§ 186-96). This is possible, exceptionally, either when: a patient ’ s life has knowingly been put in danger through denial of access to life-saving emergency treatment, or when a systemic or structural dysfunction in hospital services has resulted in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to take the necessary measures to prevent it from materialising (ibid.).

The first type of exceptional circumstances concerns a specific situation where an individual patient ’ s life is knowingly put in danger by denial of access to life-saving emergency treatment. It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment (see Lopes de Sousa Fernandes , cited above, § 191, and Mehmet Şentürk and Bekir Şentürk v. Turkey , no. 13423/09, §§ 84-97, ECHR 2013).

Turning to the circumstances of the present case, the Court notes that even if the Regional Hospital had indeed refused to admit Julia for treatment as alleged by the applicant, less than two hours later she was admitted for treatment by the Semashko Hospital (see, by contrast Mehmet Şentürk and Bekir Şentürk , cited above, where the first applicant ’ s wife, who was pregnant, died in an ambulance because of the doctors ’ refusal to carry out an urgent operation owing to her inability to pay medical fees, or Asiye Genç v. Turkey (no. 24109/07, 27 January 2015) where, the applicant ’ s new‑born baby died in an ambulance after being refused admission to a number of public hospitals). The situation at hand therefore concerns not the denial of treatment, but its delay.

Moreover, the conclusions of the first medical report which was the basis for the applicant ’ s allegations were sufficiently rebutted. First, two experts in medicine submitted that the main cause of death had been diabetes and various complications appearing long before the admission to the hospital. Next, the second expert report stated that Julia ’ s death had been unavoidable, and that medical care provided to her had been adequate. The Court notes the domestic courts ’ conclusion about the evidence value to be accorded to the second report, regard being had to the number of experts involved and the scope of medical data considered. The District Court also heard the testimony of two experts who confirmed the conclusions of the second expert report. The Court reiterates in this regard that, except in cases of manifest arbitrariness or error, it is not for the Court to call into question the findings of fact made by the domestic authorities, particularly when it comes to scientific expert assessments (see Lopes de Sousa Fernandes , cited above, § 199). As a result, it has not been demonstrated that the health-care professionals involved in the treatment of the applicant ’ s daughter knowingly put in danger her life.

Lastly, in the circumstance of the present case the Court does not see any appearance of systemic or structural dysfunction in hospital services.

Accordingly, the Court cannot discern any circumstances which may trigger direct liability of the Russian authorities under Article 2 of the Convention. The complaint at hand is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

(b) Procedural obligations

The Court has held that in medical negligence cases the procedural obligation imposed by Article 2, which concerns the requirement to set up an effective judicial system, will 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 responsibility of the doctors concerned to be established and any appropriate civil redress to be obtained. Disciplinary measures may also be envisaged (see Lopes de Sousa Fernandes , cited above, §§ 214-21, and Dumpe v. Lativa , no. 71506/13, § 59, 16 October 2018).

In the present case while the criminal proceedings had not apparently resulted in any conclusive finding, the civil-law remedy used by the applicant ended with the conclusion that Julia had received appropriate medical care.

During the examination of the applicant ’ s case the District Court did not merely rely on the investigators ’ findings, but independently established the circumstances surrounding the death of the applicant ’ s daughter, having regard to witness evidence and medical documents. The court ’ s conclusion was to the major extent based on the second expert report. The court provided reasonable justification as to why it considered the second report to be more credible than the first one. All key arguments put forward by the applicant were addressed in the judgment, which contained detailed reasoning.

Moreover, there is no reason to doubt the independence of experts who were not subordinated in any manner to medical institutions concerned (see, by contrast, Sara Lind Eggertsdóttir v. Iceland , no. 31930/04, §§ 41-55, 5 July 2007).

The Court is mindful of the applicant ’ s disagreement with the assessment of evidence and accuracy of the second expert report, but it is not its role to question those aspects of the case, given that it is not a court of appeal from the Russian courts to gainsay the way in which they admitted or interpreted evidence (compare with Ivanovi v. Bulgaria ( dec. ) [Committee], no. 67320/16, §§ 58-66, 25 February 2020).

Lastly the Court notes that the length of the domestic proceedings, which lasted for about two years and seven months, was not excessive, having regard to the complexity of the case and the time needed for the expert reports to be prepared.

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

The applicant also alleged that there had been a violation of Article 14 of the Convention in her case. However, having regard to all the material in its possession, and in so far as this complaint falls within the Court ’ s competence, it finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. This complaint must therefore be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021. {signature_p_2}

Olga Chernishova Georges Ravarani Deputy Registrar President