Communicated on 19 January 2017

THIRD SECTION

Application no. 5059/13 Arseniy Stanislavovich ZHAVORONKOV against Russia lodged on 19 December 2012

STATEMENT OF FACTS

The applicant, Arseniy Stanislavovich Zhavoronkov , is a Russian national who was born in 2010 and lives in Zlatoust, Chelyabinsk Region. The applicant is represented before the Court by his mother, Ms T. Zhavoronkova .

The circumstances of the case

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

1. The circumstances of the applicant ’ s birth

On 9 June 2010 Ms T. Zh ., the applicant ’ s mother, who was then in the ninth month of pregnancy, was referred by her gynaecologist to Zlatoust Municipal Maternity Hospital no. 1 (“maternity hospital no. 1”) to prepare for the birth of her child, which was expected on 17 or 18 June 2010.

Between 9 and 15 June 2010 she remained at that hospital during the daytime.

On 15 June 2010 Ms T. Zh . was admitted to the obstetrics department of the same hospital.

On 18 June 2010 Ms T. Zh . was examined by a gynaecologist, who confirmed that the uterine neck was ready for delivery and stated that, if she did not go into labour within the following two days, the foetal bladder would be pierced to provoke contractions.

On 20 June 2010, during the night time, Ms T. Zh . started having regular contractions; she informed a duty doctor of this. The latter examined her and stated that the contractions were irregular, that there was no cervical dilatation and that the uterine neck was not ready for labour. The doctor then ordered a nurse to inject Ms T. Zh . with certain drugs. At 1 p.m. on the same date the contractions stopped.

Later that day, Ms T. Zh . felt intense foetal movements, accompanied by pain; she informed the nurse of this. A duty doctor examined Ms T. Zh . and stated that everything was in order and that she could go to sleep.

On 21 June 2010 at 3 a.m. Ms T. Zh . started having regular contractions; she informed a duty nurse of this. In Ms T. Zh . ’ s words, the latter told her “not to disturb the doctors, who were having a rest”. A duty doctor only examined Ms T. Zh . at 6 a.m.

At 7.30 a.m. the duty doctor pierced the membranes containing the amniotic fluid (a procedure known as an amniotomy ) and saw that the amniotic fluid was intensely green and contained traces of meconium.

At 9.30 a.m. Ms T. Zh . was examined by another duty doctor, who saw the green amniotic fluid and then left.

At 10.30 a.m. a nurse administered Ms T. Zh . an injection, which made her sleep until approximately 12.45 p.m.

At 1.30 p.m. an urgent Caesarean section was performed on Ms T. Zh ., as a result of which the applicant was delivered. At his birth, the applicant had irregular breathing, blue skin and a high pulse rate, with the result that he had to be taken to an intensive care unit. He was diagnosed with “meconium amniotic fluid aspiration, cerebral hypoxia, suppression syndrome ( синдром угнетения ), and severe perinatal asphyxia at birth”.

On 22 June 2010 the applicant was transferred to a regional children ’ s hospital for a further medical treatment.

On 9 July 2010 the applicant was discharged from the regional children ’ s hospital with a diagnosis of “cerebral ischemia of the second degree, suppression syndrome, aspiration syndrome, respiratory failure, thymomegalia ”.

According to Ms T. Zh ., in July 2011 a neurologist diagnosed the applicant with “a delay in speech and motor function development”. On 8 July 2013 a private neurologist in Chelyabinsk found that the applicant was suffering from muscular hypotonia , emotional disorder, and post ‑ hypoxic cerebropathy .

At various times the applicant consulted neurologists in Ufa and Chelyabinsk, who prescribed him medicine to improve blood circulation in the brain and recommended that he undergo massage treatment. According to the applicant, he has to follow the treatment prescribed by those neurologists in order to prevent any deterioration in his health and any delays in his physical and mental development.

2. Disciplinary proceedings

On 15 July 2010 the head of the Public Health Department of the Zlatoust municipality stated that he held the chief medical official of maternity hospital no. 1 responsible for a lack of proper oversight of the quality of the medical services provided to Ms T. Zh . during the delivery of the applicant. Four doctors and a midwife of the hospital were also found liable.

3. Civil proceedings

(a) First set of proceedings for compensation

As can be seen from the documents in the case file, on an unspecified date the applicant ’ s relatives lodged with the Zlatoust Town Court of the Chelyabinsk Region (“the Town Court”) a civil claim against maternity hospital no. 1 and the Zlatoust municipality. They sought compensation for non-pecuniary damage caused by the incident in question. The Court has not been provided with information about the outcome of these proceedings.

(b) Expert report of 13 January 2012

As part of the above-mentioned proceedings, the Town Court ordered that a forensic medical expert examination be carried out to establish the circumstances of the incident.

In their report of 13 January 2012 the experts stated that during her stay in maternity hospital no. 1 Ms T. Zh . had not undergone the necessary examinations and tests which would have enabled the medical personnel of that hospital to properly assess her condition and any risks that could have been linked with that condition.

The report further stated that on 21 June 2010, after the amniotomy had revealed that the amniotic fluid contained meconium, and the foetal monitoring and Ms T. Zh . ’ s examination at 9.30 a.m. had clearly indicated that the unborn child was suffering from severe hypoxia, a decision should have been taken to perform an urgent Caesarean section. The decision to conduct the operation at 12.45 p.m. had been belated, and the preparation for that operation – which had lasted from that time until 13.28 p.m., when the operation had started – had been unduly long.

The experts also noted that in July 2011 a neurologist had diagnosed the applicant with “a delay in speech and motor function development”. The experts stated that such a delay “may have been caused by the cerebral hypoxia” suffered by the applicant at the moment of his birth.

Finally, the report stated that the aspiration of the meconium amniotic fluid, severe respiratory failure, cerebral hypoxia, and severe asphyxia had all endangered the applicant ’ s life, and should therefore be categorised as having caused serious harm to his health.

(c) Second set of proceedings for compensation

On an unspecified date Ms T. Zh . lodged a civil claim on the applicant ’ s behalf with the same court and against the same defendants. She argued that the applicant had sustained serious harm at his birth as a result of the defendants ’ medical negligence and sought compensation for non-pecuniary damage in that respect. She submitted the expert report of 13 January 2012 in support of her allegations and claimed reimbursement of the cost of that examination.

( i ) Judgment of the first-instance court

On 9 April 2012 the Town Court granted the claim in part. Relying on the expert report of 13 January 2012, the court found it established that serious harm had been caused to the applicant ’ s health. The doctors at maternity hospital no. 1 had failed to properly assess Ms T. Zh . ’ s condition, to provide her with adequate medical assistance, and to carry out the Caesarean operation on time. These negligent acts and omissions had resulted in the applicant ’ s life-threatening condition at birth. The court further observed that the law had obliged the doctors of the hospital to ensure the protection of the child ’ s health, whereas it was precisely due to the doctors ’ behaviour that the applicant ’ s health had been seriously harmed. Thus, the Town Court found justified the applicant ’ s claim for compensation of non-pecuniary damage.

The Town Court awarded the applicant 1,000,000 Russian roubles ((RUB) – approximately 25,800 euros (EUR)) as compensation for non-pecuniary damage and ordered the reimbursement of the cost of the medical expert examination in the amount of RUB 22,530.19 (approximately EUR 580). The Town Court set aside the submissions of certain witnesses that following his discharge from hospital the applicant had not needed special care and that the delay in his development had not been caused by the hypoxia suffered by him at birth. Rather, the Town Court relied on the experts ’ report of 13 January 2012 attesting that the delays in the applicant ’ s development may have been caused by the hypoxia. Furthermore, when determining the amount of compensation, the Town Court took into account the circumstances of the case, the victim ’ s individual situation, the gravity of the harm inflicted, the trauma suffered by the applicant at birth and the probable consequences of that trauma. The court also considered the degree of responsibility of the defendant (that is to say the hospital) and its status as a municipal budgetary institution.

(ii) Decision of the appellate court

On 26 June 2012 the Chelyabinsk Regional Court (“the Regional Court”) reviewed the first-instance judgment on appeal and reduced the amount of the awarded compensation to RUB 50,000 (approximately EUR 1,200). The Regional Court agreed with the Town Court that defects in the medical services provided at the hospital had led to the applicant ’ s life ‑ threatening injuries at birth. However, the Regional Court considered that in determining of the amount of compensation the Town Court “had not taken into account the absence of serious consequences, and ... the requirement of reasonableness and equity, which allows, on the one hand, [the provision of] compensation for damage caused, and, on the other hand, [the avoidance of] the imposition on those responsible of an excessive financial burden”.

The Regional Court observed, in particular, that, with reference to the expert report of 13 January 2012, the first-instance court “[had] found it established that there was a delay in the applicant ’ s speech and motor development as a result of the cerebral hypoxia [he had suffered] at birth”. The Regional Court further stated that the relevant expert conclusions had been of “a hypothetical nature” and had not been corroborated by sufficient evidence. The Regional Court then found that any current difficulties in the child ’ s development had not been sufficiently substantiated, as no documents concerning his condition after his discharge from the regional children ’ s hospital had been submitted either at the time at which the expert examination had been ordered or during the proceedings. According to the Regional Court, there was no evidence in the case to prove that the diagnosis made by the neurologist in July 2011 in respect of the applicant ’ s delayed development was a result of the trauma suffered at birth.

On 6 September 2012 the Regional Court refused to transfer a cassation appeal by the applicant to the Presidium of the Regional Court.

On 9 November 2012 the Supreme Court of Russia refused to transfer the applicant ’ cassation appeal to the Civil Chamber of the Supreme Court of Russia.

4. Criminal proceedings

On 29 October 2010 Ms T. Zh . ’ s mother brought an action for criminal proceedings to be instituted against the doctors of maternity hospital no. 1 in connection with their negligence during the applicant ’ s birth.

On 19 March 2012, after the investigator had three times refused to institute criminal proceedings, criminal proceedings were opened under Article 118 § 2 of the Russian Criminal Code (the infliction of serious health damage by an official as a result of his or her failure to fulfil his or her professional responsibilities).

A medical expert examination was ordered as part of the criminal proceedings. In a report dated 15 August 2012 the experts identified a causal link between the defects in the medical assistance rendered to Ms T. Zh . during the delivery and the life-threatening condition of the applicant at birth. The report further stated that “[t]he delayed speech and motor function development suffered by [the applicant] was due to the cerebral hypoxia ... suffered during the birth”.

On 24 December 2012 the investigator terminated criminal proceedings, citing the expiry of the two-year statutory time-limit in respect of prosecution for this category of crimes. That decision was set aside by a supervising prosecutor on 13 March 2013.

On 26 April 2013 the investigator terminated the criminal proceedings on the same ground (that is to say it had become time-barred). That decision was set aside by the prosecutor on 10 June 2013.

On 2 July 2013 the investigator terminated the criminal proceedings for lack of the constituent elements of a crime in the doctors ’ actions. The decision stated that although certain defects in the medical services had been identified in the present case, none of those defects, taken separately, had been dominant ( преобладающий ) and capable of causing the serious harm suffered by the applicant.

The prosecutor dismissed the applicant ’ s request for the above decision to be set aside.

COMPLAINTS

The applicant complains that negligence and inadequate performance of their duties on the part of medical personnel at maternity hospital no. 1 during the applicant ’ s birth put his life in danger and inflicted serious harm on his health, and that the amount of the domestic award was clearly inadequate to compensate for that damage.

QUESTIONS TO THE PARTIES

1. Can the applicant claim to be a “victim” , within the meaning of Article 34 of the Convention, of the alleged violation of his right to life, secured by Article 2, and/or his right to respect for his private life, secured by Article 8 of the Convention on account of the alleged medical negligence?

In particular:

( a ) was there an acknowledgement of the alleged violation, on account of the medical negligence, of the applicant ’ s rights secured by Articles 2 and/or 8 of the Convention?

(b) can the redress afforded to the applicant be regarded as “sufficient” for the purpose of Articles 2 and/or 8 of the Convention (see G.B. and R.B. v. the Republic of Moldova , no. 16761/09, §§ 29-35, 18 December 2012, and Csoma v. Romania , no. 8759/05 , §§ 70-72, 15 January 2013 )?

On the assumption that the applicant may claim to be a “victim” of the violation alleged,

2. Has the State complied with its positive obligation:

(a) to take appropriate steps to safeguard the applicant ’ s life, and/or

(b) to ensure that the applicant ’ private life, within the meaning of Article 8 of the Convention, is respected ( see Belenko v. Russia , no. 25435/06, §§ 76-77, 18 December 2014, with references therein) ?