THIRD SECTION

Application no . 36903/13 Petre MIHU against Romania lodged on 21 May 2013

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Mr Petre Mihu , is a Romanian national, who was born in 1938 and lives in Sibiu. He is rep resented before the Court by Mr A. Anastasescu , a lawyer practising in TimiÅŸoara .

A. The circumstances of the case

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

3 . On 21 August 2005 at 9:55 a.m. the applicant brought his son Lucian [1] at the emergency unit of the Sibiu County Hospital where he was consulted by Dr C.C.R. who recorded an initial diagnostic of “ icteric syndrome ”. Following subsequent tests the diagnostic recorded in the observation sheet was changed to “ hepatic cirrhosis with digestive haemorragia ” and he was administered a treatment with medicine. According to the hospital protocol, the doctor filled in the forms for hospitalisation in the gastroenterology section. However, due to the fact that Lucian ’ s state was aggravating and he was agitated as well as the fact that the gastroenterology section did not have an elevator for wheel beds, at around 17:50 hours, he was sent to the intensive care section where he was seen by Dr M.A. who decided that the patient needed to remain there and to receive blood transfusions.

4 . According to the applicant, he was informed by the staff of the intensive care unit that there was no available blood in the hospital so no blood was administered to his son until the morning when the applicant managed to obtain a certain quantity of blood from the hospital with the help of a friend. In addition, the applicant alleges that when he came to check on his son during the night, he found the doctors sleeping and his son tied to the bed.

5 . The following day, at around 14:30, the applicant again visited his son together with his wife and discussed with the doctor on duty on the intensive care unit who told them that their son ’ s state is improving and advised them to look in the hospital for Dr F.A., a specialist in gastroenterology. Dr F.A. consulted the patient and told the applicant that a procedure called gastrofibroscopy was needed but no equipment was available in the hospital in this respect. However, he allegedly asked the applicant to come later to his office with 200 euros in order to find a solution. At the applicant ’ s return he found out from the anaesthetics doctor that the procedure had already been performed and that his son ’ s condition worsened. While the applicant was signing the form that he agreed with the already performed procedure, he was informed that his son had not survived the respective procedure.

6 . On 29 August 2005 the applicant filed a criminal complaint against C.C.R. and M.A., the doctors who treated his son, blaming them of manslaughter due to non-compliance with the hospital rules in respect of patients with digestive haemorragia . The applicant also complained about the failure to provide blood transfusions and the general poor treatment received by his son in the Sibiu County Hospital.

7 . The forensic medical report drafted by the Cluj Napoca Forensic Institute in the course of 2006 concluded that the hospital protocol was disregarded in the current case because the patient should have been committed to the gastroenterology section immediately upon arrival but that the death was non-violent and finally no fault could be established on behalf of doctors C.C.R. and M.A.

8 . On 11 April 2007, in a brief decision based on the forensic medical report, the Prosecutor ’ s Office of the Sibiu County Court decided not to commence the criminal pursuit against the two doctors since no medical fault could be established on their behalf. This decision was upheld on 13 June 2007 by the Chief Prosecutor of the same Prosecutor ’ s Office.

9 . The applicant ’ s complaint against the two decisions was allowed by the Timişoara District Court on 16 April 2008 who decided to send back the case to the prosecutor ’ s office in order to commence the criminal pursuit against the two doctors. The court observed that the prosecutors ’ decisions were based only on the statements of the two doctors and on the forensic report and held that the prosecutors needed to clarify whether the patient ’ s state of health required his commitment to the gastroenterology section and whether a treatment specific to this section could have influenced the evolution of the victim ’ s disease. The court ordered that these clarifications be made by way of taking statements from doctors specialised in gastroenterology. In addition, the court requested the prosecutors to clarify what was the practice in the hospital in cases of digestive haemorragia and whether the two doctors respected this practice by way of witness statements and confrontations.

10 . On 18 June 2009 the Prosecutor ’ s Office of the Sibiu County Court decided again that no fault could be established with respect to the two doctors.

11 . On two subsequent occasions, on 7 June 2010 and 21 December 2011, the courts ordered the re opening of the criminal proceedings against the two doctors giving specific instructions to the prosecutors.

12 . By a decision issued on 8 July 2012 the Prosecutors ’ Office of the Sibiu County Court concluded the criminal investigation for lack of guilt on behalf of the two doctors. The case prosecutor noted that the patient could not have been transported to the gastroenterology section because the section was not provided with an elevator for wheel beds. With respect to the procedure during which the applicant ’ s son died, the prosecutor stated that its performance was rendered more difficult due to the absence from the hospital of a drug needed in order to clear the patient ’ s stomach of blood. On the applicant ’ s complaint concerning the doctors ’ failure to administer blood transfusions, the prosecutor held that the cause of death was not only anaemia but also hepatic insufficiency.

13 . The above-mentioned prosecutor ’ s decision was upheld by the 19 November 2012 final judgment of the Timişoara District Court.

B. Relevant domestic law and practice

14 . The relevant legal provisions and the domestic case-law and practice concerning the delivery of forensic reports as well as the liability of the medical staff are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-54, 16 February 2010).

COMPLAINTS

15 . The applicant complains under Article 2 of the Convention about his son ’ s death which was due to the doctors ’ failure to provide him with the adequate treatment. He further alleges that the failure to commit the patient to the gastroenterology section coupled with the failure to provide him with blood transfusions for eighteen hours provoked the death of his son. He argues that the State is responsible for the medical care in public hospitals, such as in the current case.

16 . Under Article 6 § 1 the applicant complains that the criminal investigation into the death of his son had been ineffective, incomplete, superficial and exceeded a reasonable time.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, as regards his complaint about his son ’ s death in the hospital?

2. Having regard to the positive obligations to protect life, has the State satisfied the requirement to put in place regulations for the hospitals to protect their patients ’ lives (see, mutatis mutandis, 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 and McCaughey and Others v. the United Kingdom , no. 43098/09, §§ 68-89, 16 July 2013 ), was the investigation in the present case compatible with the State ’ s obligation under Article 2 of the Convention to carry out an effective and prompt investigation into the death of the applicant ’ s son ?

The Government are invited to submit a copy of all relevant documents contained in the investigation file opened by the authorities with respect to the death of the applicant ’ s son.

[1] The exact age of the applicant’s son is not mentioned as such in the file but it results that he was a young adult who just start ed working as a trainee judge.