Communicated on 20 January 2020 Published on 10 February 2020

FIFTH SECTION

Application no. 32999/17 Nina Pavlivna GORBATA and Viktor Vasylyovych GORBATYY against Ukraine and 2 other applications

STATEMENT OF FACTS

The summary of the facts, as submitted by the applicants, is provided below with reference to ea ch application.

The applicants, Mr V. Gorbatyy (“the first applicant”) and Ms N. Gorbata (“the second applicant”), are the parents of two children. On 28 March 2018 the first applicant died. On 20 November 2019 the applicants ’ daughter, Ms T. Ignasheva , expressed her wish to pursue the application in her father ’ s stead.

At about 11.15 p.m. on 1 August 2010 the applicants ’ other daughter, Ms O., was examined at home by an ambulance doctor, who concluded that she was in need of hospitalisation given her repeated complaints about acute and continuing chest pain.

The ambulance doctor took O. to the Emergency Hospital where a duty doctor refused to admit O. because the hospital did not cover the area of O. ’ s residence. O. was transported by the ambulance doctor to City Hospital No. 3.

Shortly after arriving at City Hospital No. 3 (at about 00.05 a. m. on 2 August 2010) O. ’ s condition seriously deteriorated and she started choking, she lost consciousness and subsequently died despite the attempts made to revive her.

According to the medical report of 2 August 2010 , O. died from a heart attack (acute myocardial infarction, cardiogenic shock).

On 19 September 2010 the local prosecutor ’ s office refused to initiate a criminal investigation in relation to the death of the applicants ’ daughter. That decision was quashed on 26 August 2010 as unfounded.

On 14 September 2010 the investigator of the Chernivtsi Regional Police initiated criminal proceedings concerning the alleged failure by the medical staff to provide medical aid to O. which caused her death.

Between 12 November 2010 and 3 June 2011 a forensic medical examination was conducted. The experts reported that the applicants ’ daughter had not been provided with the required medical assistance, which resulted in her death. They also concluded that O. ’ s death could have been prevented if appropriate diagnostic measures and adequate medical treatment had been provided.

On 30 November 2011 and 20 July 2012 criminal proceedings were terminated on the grounds of lack of constituent elements of crime in the medical staff ’ s actions. Those decisions were quashed by the supervising authorities as unsubstantiated and further investigations were ordered. In the last decision of 28 March 2013 the Chernivtsi Regional Court of Appeal found that there had been a number of violations in establishing the diagnosis of the applicants ’ daughter, that the closing of the criminal case and the refusals by the investigating authorities to continue the investigation into the accident had been unfounded, and that the instructions as regards remedying shortcomings in the investigation had been ignored.

On 19 April 2017 the prosecutor ’ s office informed the applicants that the investigation was ongoing and steps were being taken to ensure that it would be effective.

On 4 and 8 November 2019 the applicants requested information regarding the progress of the investigation. They were provided with a copy of an extract from the Unified registry of pre-trial investigations of 8 November 2019, under which the criminal investigation was ongoing as of that date.

From August 2011 onwards the applicant ’ s husband underwent in-patient treatment in hospitals on several occasions due to pain in his back and ribs. In September 2011 the applicant ’ s husband was diagnosed with bladder cancer with metastatic lesions of the ninth rib on the right side and on his spine.

In September 2011 the applicant ’ s husband underwent two surgeries. He then received a course of chemotherapy and was discharged from hospital on 10 October 2011 as his condition was considered to be stable.

The applicant ’ s husband continued to suffer from severe pain in his back and ribs and requested medical assistance over the next two years after the surgeries.

In August 2013 the applicant ’ s husband, suffering from gastrointestinal bleeding was admitted to the Chervonohrad Town Hospital ( hereafter “CTH”). H e was diagnosed with a chronic ulcer and provided with medical treatment in that regard.

On 7 October 2013 he was readmitted to the CTH because of recurrence of the disease.

On 9 October 2013 the applicant ’ s husband died while undergoing medical treatment in the CTH. According to the post-mortem report he died from a chronic duodenal ulcer in the progressing phase, acute gastrointestinal bleeding, chronic bronchitis in remission, and anaemia.

On 21 October 2013 the applicant complained to the prosecution authorities that the doctors had failed to detect and correctly diagnose the disease in a timely manner, which caused her husband ’ s death.

On 7 November 2013 the criminal investigation into the alleged malpractice by the medical staff was commenced.

On 2 December 2013 the applicant was granted victim status and she was questioned by the investigator.

In January 2014 an ad hoc commission at the Health Department of Lviv Regional State Administration was established to hold an inquiry into the applicant ’ s allegations of medical negligence. The commission found that there had been shortcomings in the medical assessment of the applicant ’ s husband. The commission noted that the esophagogastroduodenoscopy had not been carried out on the applicant ’ s husband until 2013 which had been a violation of the medical rules. This failure had made it impossible to correctly diagnose his disease and provide him with the requisite medical aid in a timely manner.

On 7 May 2014 the Ministry of Health informed the applicant that another ad hoc commission had been established to examine the case of her husband and it had found shortcomings in his treatment in October 2013, insufficient medical assessment in the course of his several hospitalisations since 2011 and a number of violations regarding the maintenance of medical records in health institutions. It further noted the death of the applicant ’ s husband could have been prevented with appropriate diagnostic measures and adequate therapeutic treatment.

On 21 November 2014 the Lviv Regional Department of the Ministry of Internal Affairs informed the applicant that the investigators in charge of the case had been disciplined for the procedural violations in that case. Instructions were given as to further investigation of the case.

In April 2015 a forensic medical examination was ordered by the investigator. On 19 August 2016 an expert opinion was issued by the Kharkiv Regional Bureau of Forensic Medical Examinations. The experts reported that the applicant ’ s husband had been first diagnosed with a duodenal ulcer in August 2013. However, no information had been available about his prior treatment and examination between March 2012 and August 2013, therefore it had been impossible to establish how his illness had developed. The experts also noted that his duodenal ulcer might have resulted from the complication of his diseases.

On 18 August 2017 an additional forensic medical examination was ordered, given that it had not been possible to determine, based on the available material, whether or not there had been a direct causal link between medical negligence and the death of the applicant ’ s husband.

On 17 January 2018 the Chief Bureau of Forensic Medical Examination in Kyiv informed the investigator and the applicant that the case had been put on a waiting list and the expert opinio n should be produced within two years.

In May 2018, after the applicant made a number of requests and complaints about the inactivity of investigative authorities, an additional forensic medical examination was conducted. The experts found that there had been discrepancies between the X-rays, the medical records of the patient and the results of the post-mortem examination; however, given that the forensic examination of the exhumed body had not been carried out, it had been impossible to answer the question raised.

According to the report, the medical experts twice reported the need to examine the exhumed body to the investigatr , however, they had received no response.

On 24 July 2018 the Lviv Regional Prosecutor ’ s Office informed the applicant that the investigation had been pending and the measures would be taken to determine whether or not there had been a direct causal link between medical negligence and the death of the applicant ’ s husband.

On 2 September 2016 the applicant ’ s wife died in a municipal hospital in Kremenchuk while she was undergoing inpatient treatment on account cerebrovascular accident . On 14 September 2016 the police instituted an investigation under Article 139 § 2 of the Criminal Code of Ukraine (failure to provide medical aid resulting in the patient ’ s death).

A forensic medical examination was ordered on 23 December 2016 . In March 2017 the Forensic Bureau returned the file as it had been incomplete for the purpose of the expert examination.

Subsequently, o n a number of occasions the applicant applied to the prosecuting authorities with a request for investigative steps to be taken . He was given general replies that the investigation had been ongoing and that due measures would be taken .

On 26 October 2017 criminal proceedings were opened against the investigator for dereliction of duty. On 30 October 2017 the investigator was removed from the applicant ’ s case. On 2 8 February and 25 May 2018 two decisions were adopted to discontinue the criminal proceedings for lack of constituent elements of crime in the actions of the investigator . Those decisions were subsequently quashed as unsubstantiated and the criminal proceedings were reopened.

On 22 November 2017 a repetitive forensic expert examination concerning the medical treatment of the applicant ’ s wife was ordered, which was planned to be finalised in 2020 due to work overload.

COMPLAINTS

Relying on various provisions of the Convention, including Article 2, the applicants complain that the authorities failed to establish the circumstances in which their relatives died and to provide the applicants with effective remedies in respect of the alleged medical negligence or malpractice.

QUESTION TO THE PARTIES

Have the domestic authorities complied with their procedural obligations under Article 2 of the Convention?

The Government are invited to provide the material on criminal, disciplinary and civil proceedings in relation to the applicants ’ allegations of inappropriate medical treatment.

APPENDIX

No.

Application no.

Case name

Lodged on

Applicant

Date of birth Place of Residence

Nationality

Represented by

1 .

32999/17

Gorbata and Gorbatyy v. Ukraine

27/04/2017

Nina Pavlivna GORBATA

1961Chernivtsi

Ukrainian

Viktor Vasylyovych GORBATYY

1957Chernivtsi

Ukrainian

Bogdan Vasylyovych FOKIY

2 .

19581/18

Kravets v. Ukraine

13/04/2018

Tetyana Volodymyrivna KRAVETS

1962Chervonogad

Ukrainian

Mykhaylo Yosypovych BORDYUK

3 .

15510/19

Andriyenko v Ukraine

11/03/2019

Andriy Igorovych ANDRIYENKO

1966Kremenchuk

Ukrainian

Sergiy Valentynovych KOZHARIN