FOURTH SECTION

DECISION

Application no . 3229/15 Katarzyna BROŃSKA and others against Poland

The European Court of Human Rights (Fourth Section), sitting on 7 March 2017 as a Committee composed of:

Nona Tsotsoria, President, Krzysztof Wojtyczek, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 7 January 2015,

Having deliberated, decides as follows:

THE FACTS

1. Ms Katarzyna Bro Å„ ska (the first applicant) was born in 1975, and Mr Mateusz Nowak (the second applicant) was born in 1981. They are the parents of Jakub Nowak (the third applicant), born in 2008. All the applicants are Polish citizens who live in Wroc Å‚ aw. They are represented before the Court by Ms B. S Å‚ upska-Uczkiewicz, a lawyer practising in Wroc Å‚ aw.

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

A. The third applicant ’ s medical treatment

3. The third applicant was born at 6.40 a.m. on 27 May 2008 at the hospital in Wroc ł aw situated at Cha ł ubi ń skiego Street (“hospital no. 1”). His condition was difficult as he suffered from pneumonia. A few hours after his birth, the doctors decided to intubate ( intubacja ) him due to his worsening condition and respiratory problems. Three doctors, D.D., D.S. and T.K., successively attempted to carry out this procedure, but in vain. Eventually, an anaesthesiologist from the accident and emergency service succeeded in doing so.

4. The first applicant was discharged from the hospital on 28 May 2008. She was informed that her son had suffered pneumonia caused by an infection in a womb and that, for this reason, he had difficulties with breathing.

5. The third applicant was transferred to the intensive-care department for children in the hospital situated at Sk Å‚ odowskiej-Curie Street (“hospital no. 2”). There his condition became stable. The doctors decided to de ‑ intubate the third applicant and subsequently to intubate him again because of breathing difficulties.

6 . Subsequently, the third applicant was de-intubated and transferred to hospital no. 1. On 1 July 2008 he was examined by a laryngologist, M.Z. ‑ K., who carried out an endoscopy. The laryngologist found no damage beyond a floppy larynx which did not necessitate special treatment.

7. Subsequently, the third applicant ’ s condition deteriorated. He was again transferred to hospital no. 2. The doctors of that hospital decided to transfer him by helicopter to a hospital in Warsaw for examination. The doctors in Warsaw established that one of the third applicant ’ s vocal cords had been torn and that the other had been damaged. They repositioned the vocal cords appropriately so they could heal and then carried out a tracheotomy. The first and second applicants claimed that it had only been in Warsaw that the third applicant had been properly diagnosed. They had been told by the head of the intensive-care department of the Warsaw hospital that the third applicant ’ s problems had resulted from mechanical damage sustained during his first unsuccessful intubation.

8. The third applicant was transferred back to the hospital in Wroc Å‚ aw and discharged from it on 21 July 2008.

9. According to the applicants, the doctors of hospital no. 1 inflicted permanent bodily harm on their son. The third applicant had difficulties breathing independently and with his speech. His breathing was supported by a tracheostomy tube. His vocal cords had healed over, but they remained damaged and one of them was one-third shorter. In August 2012 the tracheostomy tube was removed.

10. According to the second applicant, the doctors of hospital no. 1 were unable to determine the third applicant ’ s condition. He was told by doctor W.G. from hospital no. 2 that the doctors from hospital no. 1 had ineptly attempted to intubate the third applicant. At the time, the third applicant was in a serious condition and was not able to breathe independently. The second applicant contended that the laryngologist ’ s diagnosis had been erroneous and that her suggestion to de-intubate the third applicant could have had fatal consequences. He further claimed that it had only been the third applicant ’ s examination in the Warsaw hospital that had permitted the determination that the reason for his breathing difficulties had been the inept intubation carried out at hospital no. 1. According to the second applicant, the doctors of hospital no. 1 attempted to conceal the damage to the third applicant by an improper diagnosis by the laryngologist and also by entering onto his medical records information suggesting that the cause of his condition was congenital defects.

B. Investigation

11. On 14 April 2009 the second applicant filed a criminal complaint with the Wroc ł aw- Ś r ó dmie ś cie District Prosecutor ’ s Office.

12. On 5 May 2009 the prosecutor instituted an investigation into the alleged offence under Article 160 § 3 of the Criminal Code, specifically whether the doctors of hospital no. 1 had unintentionally exposed the third applicant to an immediate danger of loss of life or of serious impairment of health.

13. The prosecutor heard evidence from the doctors who had treated the third applicant and obtained his medical records. She ordered that a report be prepared by a team of experts from W arsaw Medical University with a view to determining the time and cause of the damage to the third applicant ’ s health.

14. The investigation was adjourned between 10 June 2010 and March 2012 in order that the expert report be prepared.

15. The expert report of 15 March 2012 stated, inter alia , that the third applicant ’ s condition had probably resulted from an infection in the womb which had led to pneumonia and respiratory problems after birth. It established that the decision to intubate the third applicant had been correct and justified by his condition. The experts noted that the intubation of a newborn was a difficult procedure, especially in an emergency situation. They noted that the damage to the vocal cords had probably resulted fr om a mechanical damage during intubation. However, they noted that the intubation had been carried out in the situation of an immediate risk to the third applicant ’ s life and that such a procedure could lead to complications.

16. In their supplementary report of 14 January 2013, the experts held the opinion that the third applicant ’ s condit ion could be characterised as a serious long-term illness within the meaning of Article 156 § 1 (2) of the Criminal Code. They stated that they could not determine wheth er the third applicant ’ s condition had been caused by mechanical damage to his larynx or had resulted from a congenital defect. They further noted that on the basis of available medical documentation they had been unable to determine whether the examination b y doctor M.Z.-K. (see paragraph 6 above) had been carried out properly and had led to a correct diagnosis. They submitted another supplementary report on 25 March 2013.

17. On 7 May 2013 the prosecutor discontinued the investigation in respect of the alleged offence under Article 160 §§ 2-3 of the Criminal Code. On 16 May 2013 the first applicant appealed and the following day the prosecutor reversed her decision.

18. On 20 May 2013 the prosecutor again discontinued the investigation into unintentionally exposing the third applicant to an immediate danger of loss of life or to a serious impairment of health by the doctors of hospital no. 1 ’ s botched attempts to intubate him (Article 160 §§ 2-3 of the Criminal Code). The prosecutor concluded that no offence had been committed.

19. The prosecutor established that there had been no evidence to support the argument that the damage to the third applicant ’ s health had been deliberate. Having regard to the evidence, the prosecutor found that it had been impossible to establish when the damage had occurred and, consequently, who had been responsible for it. It was established that the third applicant ’ s vocal cords had been damaged in the course of an unsuccessful intubation that had been undertaken to save his life. However, the damage had been an inadvertent consequence of the procedure. Having regard to the expert evidence, the prosecutor found that the doctors had not exposed the third applicant to a direct danger of loss of life or to a serious impairment of health. She further established that recourse to tracheotomy had not been necessary when the intubation attempts had been unsuccessful.

20. On 21 May 2013 the first applicant lodged an appeal.

21. On 4 June 2013 the Wrocław-Śródmieście District Court annulled the prosecutor ’ s decision to discontinue the investigation and returned the case file. It found that the prosecutor had discontinued the investigation prematurely without having obtained all the relevant evidence in the case. This concerned, in particular, the evidence of doctors D.D., D.S., T.K. and M.Z.-K. The court noted that the prosecutor had heard their evidence in a superficial manner. It instructed the prosecutor to hear evidence from these doctors again and compare their evidence with the evidence which they had given in the civil proceedings (see paragraphs 29 - 32 below).

22. It appears that the prosecutor heard evidence from doctors D.D., D.S., T.K. and M.Z.-K. as instructed. On 12 June 2014 the prosecutor decided to adjourn the investigation on account of a prolonged procedural obstacle. The prosecutor noted that she had accepted the first applicant ’ s request for preparation of a report by a team of experts from another medical university. However, no team of experts was available to prepare the requested report since they were overburdened or did not have experts in all the required specialties.

23. The applicant appealed against the decision to adjourn the investigation. On 25 August 2014 the court upheld the prosecutor ’ s decision.

24. On an unspecified later date the investigation was resumed. On 16 December 2015 the prosecutor ordered that a report be prepared by a team of experts from Łódź Medical University.

25. On an unspecified date the investigation was taken over by the Wroc ł aw Regional Prosecutor ’ s Office. On 10 November 2016 the prosecutor annulled the earlier decision to obtain an expert report from Łódź Medical University since she had been informed that this university had been unable to prepare the report. On the same date the prosecutor ordered that an expert report be prepared by another team of experts from Łódź by July 2017.

C. Complaint concerning the excessive length of the investigation

26. On 20 May 2013 the second applicant lodged a complaint under the Law on complaint about breach of the right to have a case examined in an investigation conducted or supervised by a prosecutor and in judicial proceedings without undue delay (“the 2004 Act”). He alleged that there had been periods of inactivity in the investigation and claimed 9,000 Polish zlotys (PLN) in compensation.

27. On 2 August 2013 the Wroc Å‚ aw Regional Court dismissed the complaint. It found that the investigation had been carried out properly and that there had been no excessive delays in it.

28. On 4 August 2014 the second applicant lodged another complaint under the 2004 Act. On 6 October 2014 the Wroc Å‚ aw Regional Court dismissed his complaint.

D. Civil proceedings

29 . On 21 February 2012 the third applicant brought a claim against the hospital ’ s insurance company before the Wroc Å‚ aw Regional Court. The first applicant acted on the third applicant ’ s behalf since he was a minor. He sought PLN 255,120 (approximately 64,000 euros (EUR)) in compensation for damage to his health, PLN 50,000 (ap proximately EUR 12,500) for non ‑ pecuniary damage and a monthly allowance of PLN 4,910 (approximately EUR 1,250).

30. The third applicant argued that he had sustained damage to his health as a result of improper intubation carried out by the doctors of hospital no. 1. The first applicant stated that the third applicant was developing properly but required the assistance of his parents and siblings. He was breathing with the assistance of tracheostomy tube and his speech had not developed properly.

31. On 28 September 2012 the third applicant modified his claim. He asked the court to summon the hospital no. 2 as a second defendant. He further asked the court to dismiss the defendant ’ s application that the proceedings be suspended until the investigation had been concluded.

32 . According to the information provided by the applicants on 28 November 2016, on that date the civil proceedings were still pending at first instance.

COMPLAINTS

33. The applicants complained under Article 8 in conjunction with Article 2 of the Convention that the third applicant had sustained damage to his health in the course of the unsuccessful attempts to intubate him and that the criminal investigation into these events had been ineffective.

34. The applicants also complained, under Article 6 § 1 of the Convention, that the investigation concerning the third applicant ’ s bodily injury had not been conducted within a reasonable time.

THE LAW

A. Complaints under Article 8 in conjunction with Article 2 of the Convention

35. The applicants alleged that the third applicant had sustained damage to his health in the course of attempts to intubate him and that his medical treatment had not been appropriate. They also alleged that the investigation concerning the third applicant ’ s bodily injury had been ineffective, noting that it had been adjourned owing to the lack of an institute able to prepare an expert report.

The applicants invoked Article 8 in conjunction with Article 2 of the Convention. The relevant part of Article 2 of the Convention provides:

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life ...”

Article 8 of the Convention reads, in so far as relevant:

“1. Everyone has the right to respect for his private and family life...”

1. Complaint under Article 2

36. The Court notes that the present case does not concern a case of death in a hospital setting, but relates to damage to an individual ’ s health as a result of allegedly inappropriate medical treatment. Consequently, Article 2 of the Convention is not applicable to the instant case. In these circumstances, the procedural obligation under Article 2 to carry out an effective investigation did not arise.

37. It follows that the complaint under Article 2 is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

2. Complaint under Article 8

38. The first and the second applicants alleged that the third applicant had sustained serious health impairment as a result of medical negligence. They alleged that the doctors of hospital no. 1 had damaged his larynx, tearing one vocal cord and damaging the other. The applicants claimed that such a procedure should have been carried out by a specialist in child anaesthesiology. Despite the third applicant ’ s worsening condition, the doctors of hospital no. 1 had not had recourse to alternative methods, such as a tracheotomy or nasal intubation, and had not consulted other specialists.

They claimed that as a result the third applicant had difficulties with breathing independently and with his speech.

39. The Court reiterates that individuals ’ physical and psychological integrity (see, for example, X and Y v. the Netherlands , 26 March 1985, § 22, Series A no. 91, and Y.F. v. Turkey , no. 24209/94, § 33, ECHR 2003 ‑ IX) as well as their involvement in the choice of medical care provided to them and their consent in that respect (see, for example, Pretty v . the United Kingdom , no. 2346/02, § § 61 and 63, ECHR 2002-III, and Glass v. the United Kingdom , no. 61827/00, § 70, ECHR 2004-II) fall within the scope of the right to respect for one ’ s private life enshrined in Article 8 of the Convention. It finds that this provision applies to the circumstances complained of by the applicants.

40. The Court has held, in connection with the right to life enshrined in Article 2, that the Contracting States are required to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined; it has held that, in the specific sphere of medical negligence, access to proceedings for “civil” liability are sufficient in principle (see Calvelli and Ciglio v. Italy [GC], no. 32967/96, §§ 48-51, ECHR 2002-I; and Vo v. France [GC], no. 53924/00, § § 89-91, ECHR 2004-VIII ). The Contracting States are also under an obligation to introduce regulations compelling both public and private hospitals to adopt appropriate measures for the protection of their patients ’ lives (ibid.).

41. These principles are undoubtedly also applicable in the same context to serious interference with the right to physical integrity falling within the scope of Article 8 of the Convention (see Trocellier v. France (dec.), no. 75725/01 , ECHR 2006-XIV; Codarcea v. Romania , no. 31675/04, § 103, 2 June 2009; Yardımcı v. Turkey , no. 25266/05 , § 57 , 5 January 2010; and Spyra and Kranczkowski v. Poland , no. 19764/07 , § 82, 25 September 2012 ).

42. In this connection, the Court notes that the third applicant, acting through his mother, has instituted civil proceedings in which he is seeking to establish the doctors ’ liability for the alleged medical negligence resulting in damage to his health and to obta in compensation (see paragraphs 29 ‑ 32 above). According to the latest information available to the Court, on 28 November 2016 these proceedings were still pending at first instance (see paragraph 32 above). Accordingly, the Court finds the complaint under Article 8 to be premature. It further emphasises that it was also open to the applicants to institute disciplinary proceedings against the doctors.

43. It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

B. Complaint under Article 6 § 1

44. The applicants further complained, under Article 6 § 1 of the Convention, that the investigation concerning the third applicant ’ s bodily injury had not been conducted within a reasonable time.

The relevant part of Article 6 § 1 of the Convention provides:

“1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time...”

45. The Court notes, however, that the impugned investigation did not concern the determination of a criminal charge against the applicants within the meaning of Article 6 § 1. As they neither joined the proceedings as civil parties nor filed a request for compensation for damage before the investigating authorities, this provision is also inapplicable under its civil limb (see, mutatis mutandis , Perez v. France [GC], no. 47287/99, §§ 57-71, ECHR 2004-I).

46. It follows that this complaint is incompatible ratione materiae with the provisions of the Convention w ithin the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 30 March 2017 .

Andrea Tamietti Nona Tsotsoria              Deputy Registrar President