Communicated on 7 June 2017

THIRD SECTION

Application no. 34165/14 Tatyana Fedorovna RAKHIMOVA against Russia lodged on 21 April 2014

STATEMENT OF FACTS

The applicant, Ms Tatyana Fedorovna Rakhimova , is a Russian national who was born in 1956 and lives in Engels, Saratov Region.

A. The circumstances of the case

The applicant is the grandmother of T., who was born in 2010 but has now died. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Examination and medical treatment of T. between 27 February 2010 and 11 February 2012

T. was born on 27 February 2010 at a municipal maternity centre in Engels. He appeared healthy and did not show any signs of illness. On 2 March 2010, as part of a routine screening of all newborn babies, a sample of his blood was collected to test for phenylketonuria (“PKU”). The next day the sample was sent to the genetic laboratory at the regional children ’ s hospital in Saratov ( Саратовская областная детская клиническая больница – “the regional children ’ s hospital”), and T. was discharged.

On 4 March 2010 T. was examined by a local paediatrician and registered with municipal children ’ s hospital no. 2 ( Детская городская поликлиника № 2 ) .

On 21 May 2010 the regional children ’ s hospital informed the municipal health committee in Engels that T. was suspected of having PKU.

On 7 June 2010 municipal children ’ s hospital no. 2 received the information that T. was suspected of having PKU, and an additional blood test was carried out. It appears that only at that time could the applicant have learned that the PKU test in T. ’ s case had not been carried out within the required time-limit.

On 9 June 2010 the diagnosis was confirmed.

On 11 June 2010 the applicant talked to the doctors of the regional children ’ s hospital, who prescribed T. a special diet and gave the applicant the suitable nutrition for him.

On 21 June 2010 T. was examined by the head of the genetic laboratory who confirmed the diagnosis, prescribed diet, and recommended that a neurologist and neuropsychologist monitor his condition.

In August 2010 T. was officially recognised as having a disability.

On two occasions between October 2010 and July 2011 T. received rehabilitative treatment at the municipal children ’ s hospital ( Городская детская больница ).

From 29 November until 5 December 2011 T. received inpatient treatment at the municipal children ’ s hospital, with dermatitis as the principal diagnosis. He was later treated for one week at the infectious diseases ward of municipal hospital no. 2 ( Городская больница № 2 ) for an intestinal infection.

From 6 until 20 January 2012 T. was treated at the municipal children ’ s hospital for pyelonephritis.

On 21 January 2012, the day after he was discharged, T. was taken by ambulance to the municipal children ’ s hospital with an intestinal infection. The same day he was transferred to municipal hospital no. 2, where he stayed until 31 January 2012.

On 1 February 2012 T. was examined at another hospital in Saratov for an intestinal obstruction and was diagnosed with sepsis. The same day he was transferred to the municipal children ’ s hospital for treatment.

On 11 February 2012 he died.

According to the autopsy report, the cause of T. ’ s death was sepsis of unknown origin.

2. Civil proceedings

(a) Civil claim

The applicant sued municipal children ’ s hospital no. 2 and the municipal children ’ s hospital, seeking compensation for pecuniary and non-pecuniary damage. She argued that from T. ’ s birth the doctors of the hospitals concerned had not provided him with the proper medical care, which had resulted in his death.

The Engelsskiy District Court of the Saratov Region (“the District Court”) took up the case and joined the Ministry of Health of the Saratov Region, the municipal health committee in Engels, municipal hospital no. 2 and the regional children ’ s hospital as co-defendants.

(b) Expert report no. 218

The District Court requested an expert examination with a view to determining, in particular, whether the doctors were responsible for any defects in the medical services provided to T., whether those defects could have led to the fatal outcome, and whether the treatment of the sepsis had been adequate. The experts were also asked to establish whether the doctors were responsible for the delay in diagnosing the PKU, and whether the diagnosis could have been made earlier.

According to expert report no. 218 obtained in November 2012, T. ’ s PKU diagnosis was delayed because of a lack of reagent kits in the genetic laboratory, which, in the experts ’ opinion, was an objective factor. The experts also stated that the purpose of the test was to identify PKU and start treatment before a child turned eight weeks old. Only if a special diet was started early enough would normal development of the child be possible. The delay in diagnosing the PKU in T. ’ s case had been partly attributable to the staff of the laboratory.

The experts also attested that there had been several defects in the inpatient and outpatient medical services provided to T. In particular, he had not been duly examined by a number of specialists, and had been prematurely discharged from municipal hospital no. 2 in December 2011 and the municipal children ’ s hospital in January 2012 . However, the experts concluded that those defects had not caused his death. Nor had they had a negative impact on his health. The experts noted that the primary factor in the fatal outcome had been the severity and progression of the PKU, which had led to the weakening of the child ’ s immune system, vulnerability to infection and, subsequently, sepsis and death. According to the experts, T. ’ s death would have been difficult to avoid.

(c) Judicial decisions in the case

On 16 January 2013 the District Court dismissed the applicant ’ s claims in full. The District Court referred to the findings of expert report no. 218 that the defects in the medical services provided to T. had had no direct causal link with his death, and that the major factor that had had a negative impact on T. ’ s health had been the belated diagnosis of the PKU.

The District Court established that no tests for PKU had been conducted between 1 October and 25 April 2010 because of a lack of reagent kits in the genetic laboratory. It therefore concluded that the delay in diagnosing the PKU in T. ’ s case had been for that reason. It also outlined the measures taken by the regional Ministry of Health in order to rectify the supplies of the reagent kits. It noted that the only source for financing the tests were allocations from the federal budget. The court agreed with the medical experts that neither the doctors nor the regional Ministry of Health were responsible for the delay in diagnosing the PKU in T. ’ s case.

On the same day the District Court issued three special rulings as regards the defects in the medical services provided to T. The attention of the chief medical officers of municipal children ’ s hospital no. 2, the municipal children ’ s hospital and municipal hospital no. 2 was drawn to the defects found in their services provided to T.

On 16 April 2013 the Saratov Regional Court (“the Regional Court”) upheld the decision of the District Court. The applicant lodged cassation appeals, which were dismissed by the Regional Court and the Supreme Court on 4 July and 17 October 2013 respectively. On 30 October 2013 the applicant received the ruling of the Supreme Court.

3. Criminal proceedings

The applicant lodged a criminal complaint. According to a letter from the regional investigative authority dated 9 September 2014, during the preliminary inquiry an expert examination was conducted, as a result of which no causal link was established between the defects in the medical services provided to T. and his death. The investigative authorities refused to open a criminal case several times owing to a lack of the elements of a crime in the doctors ’ actions, with the latest refusal dated 23 February 2014.

On 6 May 2015 a criminal case was opened, and on 25 May 2015 the investigator ordered an additional expert examination. The investigator referred to the fact that one of the experts, who had conducted the expert examinations resulting in reports no. 218 and 203, had explained that the delay in diagnosing the PKU had caused irreversible changes in the T. ’ s metabolism, which had led to his death.

According to expert report no. 9 produced in December 2015 in Orenburg, the deterioration of T. ’ s condition and his death was due to such factors as him having PKU, which meant that his immune system had been weakened as a result of a lack of protein, and certain defects in the medical treatment provided by the municipal children ’ s hospital. The experts concluded that it was not possible to estimate the exact impact each of those factors had had for the fatal outcome. Thus, they said that they could not establish a direct causal link between the defects in medical services and T. ’ s death, as the severity of PKU was also a relevant factor.

On 6 April 2016 the investigator decided to close the criminal case. Relying on the experts ’ evidence, she found that the delay in diagnosing the PKU had been for an objective reason, namely a lack of reagents in the laboratory of the regional children ’ s hospital in Saratov. She further concluded that, based on the available evidence, it was not possible to say with certainty that the defective medical services had caused the death. Therefore, no elements of a crime could be found in the doctors ’ actions.

B. Relevant domestic law

Russian law gives detailed recommendations on the screening of newborn babies. The recommendations, found in Decree no. 185 of the Russian Ministry of Health and Social Development, enacted on 22 March 2006, state that municipal hospitals organise and conduct neonatal screening. The aim of the programme is timely diagnosis and treatment of genetic diseases, prevention of disabilities and severe consequences, as well as an improvement in child mortality rates caused by those conditions. The list of the conditions that the programme covers contains five diseases, including phenylketonuria.

According to the recommendations, a blood sample for the screening is to be collected on the fourth day of life of a child, and the test is to be completed at a genetic laboratory within ten days of the blood sample being taken.

COMPLAINTS

The applicant complains under various Articles of the Convention that the municipal hospitals failed to provide her grandson with the proper medical care, which resulted in his death. She also complains of a lack of effective remedies in that respect .

QUESTIONS TO THE PARTIES

Was the applicant ’ s grandson ’ s right to life, ensured by Article 2 of the Convention, violated in the present case?

Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), was the inquiry in the present case by the domestic authorities into the alleged medical malpractice in breach of Article 2 of the Convention?

In particular, was the delay in diagnosing the PKU because of a lack of reagent kits compatible with the requirements of Article 2 of the Convention, and did the State afford the applicant an appropriate remedy in connection with her allegations in that respect?