THIRD SECTION

Application no. 56556/10 Florin ISTRÄ‚ÈšOIU against Romania lodged on 24 September 2010

STATEMENT OF FACTS

The applicant, Mr Florin Istrăț oiu , is a Romanian national, who was born in 1975 and lives in Tilbury .

A. The circumstances of the case

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

1. The medical treatment of the applicant ’ s son

On 12 May 2005, the applicant ’ s son, aged five years and six months at that time, underwent a tonsillectomy - a medical surgery whereby his tonsils were removed – performed by doctor O.L.T. After the surgery the child ’ s health condition was stable and the first medical check-up was scheduled for 21 May 2005.

During the medical check-up which took place on the scheduled date, O.L.T. assured the parents that the post-surgical recovery was going well and recommended them to continue caring for their child in the same way.

On 23 May 2005, in the morning, the child suffered a haemorrhage further to which blood flooded his mouth and nose. The applicant ’ s wife called the emergency services, but because the ambulance did not come, she took a taxi with her child and a neighbour she had called to help her and rushed to the emergency unit of the Bacău County Hospital.

At the emergency unit of the Bacău County Hospital, they encountered chief-nurse N.L.O who advised the applicant ’ s wife to take the child to the paediatric unit of the same hospital for medical care. The child did not receive any medical treatment at the emergency unit because by the time doctor S.H and medical nurse M.S., who were on call at that time, were ready to treat him they could not examine him, because the applicant ’ s wife had already taken him to the paediatric unit, as instructed by chief-nurse N.L.O.

Upon arrival at the paediatric unit, the doctors tried to reanimate the child and clear his respiratory channels, but without any success. The child had died.

2. Criminal proceedings against the medical personnel

On 31 May 2005, the applicant lodged a criminal complaint without joint civil claims with the Prosecutor ’ s Office attached to the Bacău Court of First Instance (“ Prosecutor ’ s Office ”). The applicant asked for a medical expert report to be produced, because he considered that the explanations given by the doctors who conducted his son ’ s necropsy on 21 June 2005 were not pertinent. The forensic necropsy report stated that the child ’ s death had been violent and had been caused by severe respiratory insufficiency by aspiration of blood in the respiratory channels, due to the severing of a small blood vessel in the left tonsil ’ s cavity further to a local severe inflammatory process.

On an unspecified date but no later than 30 July 2005, the forensic necropsy report was subject to the approval of the IaÅŸi Forensic Institute and the Higher Forensic Commission, because the applicant contested its results.

On 28 July 2005, the applicant reiterated his request with the Bacău Police Inspectorate for a medical expert report to be produced in his son ’ s case. He requested that an expert-third party and a specialist doctor be allowed to take part in the process.

On 30 July 2005, the IaÅŸi Forensic Institute approved the forensic necropsy report.

On 4 November 2005, the Prosecutor ’ s Office authorised the medical expert report, deemed necessary in the absence of the Higher Forensic Commission ’ s opinion. The expert report was no longer performed since on 27 October 2005 the Higher Forensic Commission issued its opinion on the forensic necropsy report, which was communicated to the Bacău Police Inspectorate on 6 December 2005. The Higher Forensic Commission concluded that there were no elements of medical fault on the part of dr . O.L.T. and that the forensic necropsy report was correct when establishing the cause of death which had been the child ’ s mechanical asphyxiation further to an abundant haemorrhage caused by the sectioning of a small blood vessel.

On 15 December 2005, the applicant filed a memorandum on mismatches between medical acts, claiming procrastination of the case and demanding a medical expert report. On 8 February 2006, the applicant reiterated his request for a medical expert report.

On 21 July 2006 , the Prosecutor ’ s Office instituted a criminal investigation against the chief-nurse N.L.O for negligence while on duty. At the same time, it opened the criminal investigation against dr . O.L.T, dr. S.H. and the medical nurse M.S. for involuntary manslaughter and negligence while on duty.

On 26 March and 21 June 2007, the applicant reiterated his request for a medical expert report and also asked for additional evidence.

By order of 12 March 2008, the prosecutor investigating the case decided not to pursue the criminal proceedings opened against the medical personnel. He decided to discontinue the criminal pursuit ( scoaterea de sub urmarire penal ă ) against chief-nurse N.L.O. for negligence in service and the non-commencement of the criminal pursuit ( neînceperea urmăririi penale ) against dr. O.L.T. for involuntary manslaughter and dr. S.H. and medical nurse M.S. for negligence in service, on accounts of lack of the subjective aspect for the criminal offence. It stated that the clinical and medical investigation, as well as the tonsillectomy performed by dr . O.L.T. had been adequate and that no omissions or negligence could be established in the attitude towards the victim. In addition, it stated that neither dr . S.H. nor medical nurse M.S. spoke with the mother in order to direct her to the paediatric unit and that chief-nurse N.L.O. did not have the required power of decision according to his work duties.

On 8 May 2008, the applicant challenged the order before the hierarchical prosecutor.

By a final order of 16 June 2008, the hierarchical prosecutor rejected the applicant ’ s complaint on the ground that the surgery had been performed by dr. O.L.T. with the observance of the legal provisions and that the fault of the medical staff at the emergency unit of the Bacău County Hospital could not be retained since it could not be established for certain if the child had been alive upon his arrival at the hospital. The decision was communicated to the applicant on 25 July 2008. The applicant challenged this order before the domestic courts.

3. Court proceedings

By a judgment of 27 January 2009 , the Bacău Court of First Instance dismissed the applicant ’ s complaint as tardy .

The applicant appealed against this judgment.

By a judgment of 16 June 2009, the Bacău County Court allowed the applicant ’ s appeal on points of law, quashed the first instance court ’ s judgment and sent the case for re-examination to the said court.

By a judgment of 14 December 2009, the Bacău Court of First Instance dismissed the complaint as ill-founded.

The applicant lodged an appeal on points of law against the judgment.

By a final judgment of 27 April 2010, the Bacău County Court dismissed the applicant ’ s appeal on points of law, on the ground that no medical fault of the medical staff could be established in light of the Higher Forensic Commission ’ s opinion. The court further stated that based on the file ‑ documents and despite the efforts made by the criminal prosecution authority and the court it could not be proved with any degree of certainty that the person who had directed the mother to the paediatric unit had been part of the medical personnel on call at the time of the child ’ s death and that it did not result from any document that the mother had been directed to the paediatric section by the doctor and that she had spoken with the doctor to this end. The court considered that the medical data in the present case excluded any medical fault.

4. Disciplinary proceedings against dr . O.L.T.

By a decision of 8 May 2007, the Higher Commission of Discipline of the Romanian College of Doctors decided that it was clear that during the applicant ’ s son ’ s surgery the posterior wall of the tonsils had been severed, which caused the lasting haemostasis and the radio-necrosis of the internal carotid and of the pharyngeal wall. At the same time, it stated that there had been no medical fault.

Moreover, the Commission of Discipline upheld the outcome of the administrative investigation performed by the Bacău County Hospital, stating that the person who had directed the mother to the paediatric unit could not be determined and therefore no administrative sanction was applied.

B. Relevant domestic law

The judgment delivered in Eugenia Lazăr v. Romania ( no. 32146/05 , §§ 41-54 , 16 February 2010 ) describes in detail the relevant domestic case ‑ law and practice concerning the delivery of expert medico-legal reports and the authorities competent for their issuance, as well as the relevant domestic law and practice concerning the civil liability of medical staff.

Article 19 (1) and (2) of the Romanian Code of Criminal Procedure states that victims seeking compensation for damages caused as a result of an offence and who have not become civil parties to the criminal proceedings may open a separate set of civil proceedings before civil courts. The proceedings opened before a civil court shall be stayed pending the outcome of the criminal proceedings.

Articles 1, 3 and 8 of Law-Decree no. 167/1958 on the statute of limitation stipulates that proceedings of a pecuniary nature shall be time barred within three years from the date the victim was aware or should have been aware of the damage and of the identity of the person who caused it.

COMPLAINT

The applicant complains under Article s 2 and 6 of the Convention that the death of his son had been the result of the Bacău County Hospital medical staff ’ s negligence and failure to act speedily in order to save his life. In addition, he argues that the criminal investigation into the death of his son was ineffective and lacked promptness since it lasted for four years and ten months and no liability on the part of the medical personnel was established.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, for complaining of the death of his son?

2. Having regard to the positive obligations to protect life, has the State satisfied the requirement to put in place regulations for medical staff within the hospitals upon admittance of the patients for their speedy treatment and referral, as the case may be, in order to save the lives of the said patients (see G.N. and Others v. Italy , no. 43134/05 , 1 December 2009 )?

3. Having regard to the procedural protection of the right to life (see Eugenia Lazăr v. Romania , no. 32146/05 , 16 February 2010 ) did the investigation conducted in the present case by the domestic authorities comply with the promptness and effectiveness requirements provided by Article 2 of the Convention?