Communicated on 7 July 2016

FOURTH SECTION

Application no. 69950/14 Krystyn a ZWIERZ against Poland lodged on 20 October 2014

STATEMENT OF FACTS

The applicant, Ms Krystyn a Zwierz, is a Polish national who was born in 1954 and lives in Wrocław. She is represented before the Court by Ms M. Gąsiorowska, a lawyer practising in Warsaw.

The circumstances of the case

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

1. Treatment and death of the applicant ’ s husband

In April 2008 the applicant ’ s 56-year-old husband, R.Z., was diagnosed with advanced stage leukaemi a (stage III in the Rai classification and stage C in the European Binet classification). He became a patient at Wroc ław Haematology Hospital ( Klinik a Hematologii ) and was registered as such at the Regional Blood Centre ( Re gionalne Centrum Krwiodawstw a i Krwiolecznictwa , also known as Stacj a Krwiodawstwa ).

At 5.30 a.m on 28 July 2008 R.Z. was taken by ambulance to the emergency ward of Dolnośląski Specialist Hospital ( Oddział Ratunkowy Dolnośląskiego Szpital a Specialistycznego ) which at the time was situated on Traugutt a Street in Wrocław. The applicant provided the ambulance staff with her husband ’ s medical records and stated that a blood transfusion was urgently required.

At approximately 6.30 a.m. R.Z. was examined at Dolnośląski Specialist Hospital by Dr D.W. At approximately 7.20 a.m. an electrocardiogram and laboratory tests were performed. A blood test revealed that R.Z. had a very low level of haemoglobin. As submitted by Dr D.W. in the course of the criminal inquiry (see point 2 below), the patient ’ s initial condition had improved after various medicines had been administered to him in the ambulance and at the emergency ward. His life had not been in danger and he had been fit enough to be transferred to another hospital.

At an unspecified time after 8 a.m. R.Z. was transferred to Wrocław Regional Specialist Hospital ( Wojewódzki Szpital Specjalistyczny) which was located in another part of the city, on Koszarow a Street. The vehicle in which R.Z. was driven there did not have any life-support equipment or a doctor on board. An unspecified company was in charge of the transport and not the State ’ s Emergency Ambulance Service ( Pogotowie Ratunkowe ).

At 9.21 a.m. R.Z. arrived at Wrocław Regional Specialist Hospital ’ s admissions ward ( izb a przyjęć ), where J.S. was the doctor on duty. The medical chart (signed by Drs B.R.G. and K.K.) described his condition on arrival as extremely serious ( skrajnie ciężki ). Dr J.S. consulted R.Z. ’ s medical records, performed another electrocardiogram and checked the patient ’ s blood pressure. R.Z. received fluids and various medicines intravenously, and a blood transfusion was prescribed for him. R.Z. stated that he was blood type B but had no documents to confirm that.

At 9. 40 a.m. an order for B Rh negative blood was registered by the Regional Blood Centre with a note saying “for rescue” ( n a ratunek ). The order was later cancelled by telephone. It appears that in the records which were produced in the course of the criminal inquiry Dr J.S. ’ s name appeared next to R.Z. ’ s blood order and its cancellation.

In the course of the criminal inquiry Dr J.S. stated that she had placed the order with the hospital ’ s blood bank ( szpitalny bank krwi ), not with the Regional Blood Centre. She had also allegedly made a written note that R.Z. was a repeat blood recipient. Dr J.S. also submitted that she had ord ered a blood matching test to determine R.Z. ’ s blood type and had confirmed the blood order over the telephone. Soon afterwards, J.S. received a telephone call from the hospital ’ s laboratory, informing her that the blood matching test had failed because of the presence of antibodies in the patient ’ s blood and that she needed to order blood from the Regional Blood Centre. J.S. stated that she had conveyed that information to an unspecified person, possibly Dr B.R.G. at the internal ailments ward where R.Z. had meanwhile been transferred. Dr J.S. could not explain why her name appeared in the Regional Blood Centre ’ s records alongside the order for blood for R.Z. and the cancellation.

At an unspecified time, before Dr J.S. received the results of the blood matching test, R.Z. had been transferred to the hospital ’ s internal ailments ward ( oddział chorób wewnętrznych ). Dr B.R.G, a fourth-year resident, was on duty there. She was supervised by the chief doctor ( ordynator ) K.K. As submitted by her in the course of the criminal inquiry, R.Z. ’ s medical records from the Haematology Clinic, Dolnośląski Specialist Hospital and from the hospital ’ s own admissions ward had not contained any information about his blood type or the presence of antibodies in his blood. The patient was examined by both Dr B.R.G. and Dr K.K. The intravenous treatment was continued, medicines to lower his blood pressure were also administered and it was confirmed that a blood transfusion was urgently required. Dr B.R.G. later specified that the transfusion had been required within an hour and a half. Dr B.R.G. waited for the arrival of the blood that had been ordered from the Regional Blood Centre which, to her knowledge, had been placed by the doctor from the admissions ward (J.S.). The patient was not on a heart monitoring system.

At 10.05 a.m. the hospital ’ s electronic system received a report from the Regional Blood Centre that the blood type indicated by R.Z. was incorrect. At 10. 21 a.m. the system also received a report that the result of the blood test had been inconclusive ( nieprawidłowy ) because of the presence of antibodies in R.Z. ’ s blood. Those problems were also communicated to the hospital by telephone between 10.21 and 10.33 a.m. A report to that effect was printed out by a member of the hospital staff at 10.33 a.m.

Dr B.R.G. stated in her submission that she had been busy with patients and had been shown the above-mentioned report between 10.33 and 11.20 a.m. The doctor first ordered that nurses take a new blood sample from the patient. She then filled out various documents related to the report about mismatched blood, placed a new order for blood and for the transport of the blood sample by ambulance, and left the documents and the instructions on how to proceed once the blood sample had been produced with the nurses. Dr B.R.G. telephoned the Regional Blood Centre to inform them about the incoming blood order. In her deposition, Dr B.R.G. at first stated that she had not followed up on the progress of the order. She later stated that between 11.20 a.m. and 1.30 p.m. she had telephoned the Blood Centre several times to enquire about the status of the order. She was reassured that blood matching tests were underway and that the order was being processed. Before finishing her shift at 3 p.m. the doctor telephoned the Regional Blood Centre once more to inform them that the patient had been transferred to another ward. She stated in her submission that she had asked the applicant to leave her office when she called the Regional Blood Centre.

The hospital ’ s “reports notebook” ( zeszyt raportów ) shows that R.Z. ’ s blood sample and the documents necessary for processing the blood order were dispatched to the Regional Blood Centre at 11.20 a.m.

As stated in one of the prosecutor ’ s decisions, one piece of evidence produced in the course of the criminal inquiry showed that R.Z. ’ s blood had been taken at 12.50 p.m. That information was not corroborated by any other evidence.

The statement issued by the Regional Blood Centre for the purposes of the criminal inquiry on 21 January 2009, of which an incomplete copy has been submitted to the Court by the applicant, contains conflicting information about the subsequent course of events.

According to one entry, R.Z. ’ s blood sample was delivered to the Regional Blood Centre at 1.30 p.m. The patient ’ s file, which had been created at the Regional Blood Centre in April 2008, was consulted. It contained information about R.Z. ’ s blood type and his blood antibodies. A blood matching test was also performed. It was ultimately decided that A Rh negative blood was appropriate for R.Z. ’ s transfusion. Those tests were completed at 3.30 p.m. and the results were transferred to the dispatch department of the Regional Blood Centre.

According to another entry, Dr B.R.G. ’ s blood order was ready for dispatching at 2.50 p.m. The blood was not collected because of the patient ’ s death.

At 2.36 p.m. R.Z. was transferred to the intensive care unit. He died there at 3.15 p.m.

At the applicant ’ s request an autopsy was not performed and the cause of the patient ’ s death was not established.

2. Criminal proceedings

On 16 September 2008 the applicant filed a criminal complaint with the Wrocław Psie Pole district prosecutor, submitting that her husband had died as a result of omissions by the medical staff of Dolnośląski Specialist Hospital and Wrocław Regional Specialist Hospital.

On 15 October 2008 a criminal inquiry was opened into allegations that R.Z. had been exposed to direct danger to his life or limb ( narażenie n a bezpośrednie niebezpieczeństwo utraty życi a albo wystąpieni a ciężkiego uszczerbku n a zdrowiu ) on account of the hospitals ’ failure to provide him with a blood transfusion.

On 3 and 26 March 2009, Drs B.R.G, D.W. and J.S. respectively were questioned by the police as witnesses. On 3 November 2009 Dr B.R.G. was once more questioned by the police as a witness. The applicant participated in each questioning.

The doctors ’ submissions have been described above (see point 1 above).

In addition, Dr D.W. told the police that many patients had had to be transferred to better equipped medical establishments because the emergency ward at Dolnośląski Specialist Hospital had not had specialist medicines in stock. On the other hand, R.Z. could not have been transferred to a hospital specialised in treating leukemi a patients because no agreement with such medical establishments had existed. She also submitted that the results of blood tests were usually received within two to three hours because of the large number of patients (50 to 100 patients were typically admitted in a twenty-four-hour period). The doctor confirmed that R.Z. had required a speedy blood transfusion but the emergency ward had not been competent to issue a blood order. She did not think that she had committed any medical error while treating R.Z. on her ward.

It appears that on 5 June 2009 the prosecutor obtained a report by an expert, Dr A.C. A copy of that report has not been submitted to the Court.

On an unspecified date the prosecutor decided to order a report from independent medical experts.

On 17 September 2009 the applicant received a letter on the progress of the inquiry from the prosecutor.

On 29 June 2010 the Wrocław Psie Pole district prosecutor decided to adjourn the inquiry until the submission of the experts ’ report. It was noted that such a report was necessary for the case but that most of the competent medical establishments in the country had declined to write one owing to their heavy workload. Ultimately, the Warsaw Institute of Forensic Medicine had accepted the request, with the reservation that the report could be prepared no sooner than in twelve months or so.

On 15 January 2013 the report by three experts from the Warsaw Forensic Medicine Institute ( Zakład Medycyny Sądowej ) was submitted to the district prosecutor. A copy of the report has not been submitted to the Court.

On 18 February 2013 the criminal inquiry resumed.

On 1 July 2013 the district prosecutor obtained supplementary submissions from the three experts. The applicant participated in that questioning.

As to the first phase of R.Z. ’ s treatment, at Dolnośląski Specialist Hospital, the experts concluded that the patient had undoubtedly required treatment on the internal medicine ward. The decision to transfer him to another medical establishment was considered unjustified because even though R.Z. ’ s condition had allowed for such a transfer the Dolnośląski Specialist Hospital had had spare places on its own toxicology ward. The experts could not speculate whether R.Z. ’ s transfer to another hospital had placed his life and limb in direct danger. They nevertheless concluded that the delay which had occurred had decreased the chances of his successful treatment.

As to R.Z. ’ s transfer in a vehicle other than an ambulance, the experts were of the opinion that as the patient ’ s life had not been in danger that decision had been risky but not unacceptable.

As to the second and third phases of R.Z. ’ s treatment at Wrocław Regional Specialist Hospital ’ s admissions ward and internal ailments ward, respectively, the experts upheld the conclusions of their original report. The treatment provided by Dr J.S. was therefore considered adequate. It was impossible, however, to establish the exact sequence of events as regards the placing of the first and second blood order and the transport of the blood sample. It was also not known who had cancelled the first order. The experts considered that the blood sample should have been produced as soon as the problem with the first order had been communicated by the Regional Blood Centre. The sample and the second order should then have been dispatched from the hospital within thirty minutes. In the light of the materials produced in the course of the criminal inquiry, the experts could not indicate who had been responsible for the omission which had occurred in R.Z. ’ s case. However, assuming that the omission had not been of an organisational nature, the doctor on duty and her supervisor were accountable. The significant delay in ordering blood for R.Z. had caused a direct danger to his life and limb.

The experts also submitted that a blood transfusion would not have guaranteed that R.Z. ’ s life would have been saved but starting that treatment before or at about noon would have increased his chances of survival.

On 17 September 2013 the district prosecutor questioned the chief doctor K.K. as a suspect. The applicant participated in the questioning. K.K. corroborated the testimony given by his colleague, although he could not say how long it usually took to prepare blood samples and to place a blood order with the Regional Blood Centre. The completion of such an order could take several hours or days, depending on the availability of the particular blood type. It took longer to obtain blood during the summer holidays. K.K. did not know how much time had been spent on that question in the case of R.Z. K.K. stated that when he had asked Dr B.R.G. about the status of the blood order, she had told him that she had been constantly on the telephone about it. K.K. had no doubt that R.Z. had required an urgent blood transfusion. The patient had been transferred to another ward because his condition had deteriorated . K.K. also testified that a fourth-year resident doctor was fully qualified to be on duty without any supervision and to handle a blood order. K.K. did not know if a blood transfusion could have been carried out at Dolnośląski Specialist Hospital. A blood order could definitely have been placed by that hospital ’ s staff. K.K. remembered informing R.Z. ’ s wife about the patient ’ s status and the progress of the blood order. He absolutely denied telling the applicant that she had no right to enquire about her husband ’ s health, as claimed by the applicant.

On 31 October 2013 the district prosecutor questioned Dr B.R.G. as a suspect. The applicant participated in the questioning. Her submissions as to the course of R.Z. ’ s treatment have been summarised above. The doctor stated that she had not cancelled a blood order. She also explained that blood orders were infrequent at the hospital and that in her own practice she had made only a few such orders and never in an emergency situation. She was aware of the procedure for ordering blood and she knew that processing such orders took between two to twelve hours. The doctor did not inform her supervisor of any problems in obtaining blood for R.Z.

On 27 December 2013 the Wrocław Psie Pole district prosecutor discontinued the inquiry into the actions of Dr B.R.G. and her supervisor Dr K.K. on the grounds that no criminal offence had been committed (no. 2 Ds 23/13).

The applicant lodged an interlocutory appeal, challenging, among other things, the evidential value of the Wrocław Regional Specialist Hospital ’ s “reports notebook” which had been discovered five years into the inquiry. In particular, she submitted that no experts had been asked to verify whether the notebook in question had not been fraudulent, that its contents had not been checked against other medical documents and witness testimony and that she had not been allowed to see the notebook during the inquiry.

On 7 May 2014 the Wrocław District Court ( Sąd Rejonowy ) upheld the prosecutor ’ s decision.

3. Disciplinary proceedings against doctors

On 6 July 2011 the Chief Agent for Disciplinary Matters ( Naczelny Rzecznik Odpowiedzialności Zawodowej ) discontinued the disciplinary proceedings it had begun against Dr D.W. from Dolnośląski Specialist Hospital and Dr B.R.G. from Wrocław Regional Specialist Hospital.

On 4 November 2011 the Supreme Medical Court ( Naczelny SÄ…d Lekarski ) upheld that decision. It found that the documents produced in the course of the proceedings, including the report by three experts in haematology and emergency medicine, had allowed for an exhaustive assessment of all the aspects of the case.

It was established that the results of the blood tests at the emergency ward of Dolnośląski Specialist Hospital had been obtained in 51 minutes and that all the necessary cardiological examinations had been performed in due time. Dr D.W. ’ s diagnosis had been accurate and her decision not to order blood for transfusion and to transfer R.Z. to another hospital had been justified in the light of the fact that the patient ’ s blood type had been unknown.

It was also established that when Dr B.R.G. had obtained information about the inconclusive blood test results and the resulting problems with processing the first order, she had sent a new order with the necessary blood samples and documents. Because the hospital ’ s blood order forms did not contain all the information, it was impossible to determine at what time the order in question had been sent from Wrocław Regional Specialist Hospital. It had reached the Regional Blood Centre at 1.30 p.m., which could be explained by the fact that ambulances were not always readily available for the transport of blood samples and blood orders. Dr B.R.G. had consulted with the chief doctor K.K. about her actions and had not committed any errors in respect of R.Z. ’ s treatment.

The Supreme Medical Court concluded that the failure in R.Z. ’ s treatment had been caused mainly by the patient ’ s belated admission to hospital although, without a post-mortem examination, it was impossible to determine the cause of death with absolute certainty. R.Z. had suffered increasing health issues since 25 July 2008 and it was uncertain whether a blood transfusion on 28 July without a prior matching test would have saved his life.

COMPLAINTS

The applicant complains under Article 2 of the Convention.

Firstly, she complains that flaws in the organisation of public hospitals and omissions by the doctors, resulting in a failure to provide R.Z. with a blood transfusion, were the direct cause of her husband ’ s death.

QUESTIONS TO THE PARTIES

1. Having introduced the application after the death of her husband, can the applicant claim, on her own and on her late husband ’ s behalf, to be a victim of a violation of Article 2 of the Convention, within the meaning of Article 34 (see Lopes de Sous a Fernandes v. Portugal , no. 56080/13 , § 90, 15 December 2015, and Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romani a [GC], no. 47848/08, § 98, ECHR 2014) ?

2. Has the applicant ’ s husband ’ s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the State authorities comply with their positive obligations to protect the health and well-being of patients:

(a) by providing R.Z. promptly and diligently with the medical treatment needed for his health condition; and

(b) by putting in place a regulatory framework and taking measures necessary to prevent risks to the lives of leukemi a patients stemming from acts or omissions by the medical staff of public hospitals and blood centres?

3. Having regard to the procedural protection for the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, 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?