THIRD SECTION

Applications nos . 58240/08 and 67813/11 Gulnara SARISHVILI-BOLKVADZE against Georgia and Zhana DZEBNIAURI against Georgia lodged on 14 February 2008 and 7 October 2011 respectively

STATEMENT OF FACTS

1 . The applicants are Georgian nationals (see the annex) . The facts of the ir cases, as submitted by the m , may be summarised as follows.

A. Sarishvili-Bolkvadze v. Georgia, no. 58240/08

2 . The applicant is the mother of Mr Giorgi Bolkva dze who died on 14 March 2004 in Batumi Hospital No. 1, a private medical establishment. The cause of his death was internal acute bleeding associated with stomach ulcer. He had been placed in that hospital with various traumatic injuries received as a result of a work accident of 16 Februar y 2004, which had prompted a re activation of his ulcer. According to a number of subsequent independent expert medical opinions, the medical staff of the hospital had been negligently late in providing Mr Bolkvadze, on 10 March 2004, with a requisite surgery for his reopened stomach ulcer.

3 . On 23 June 2004 a criminal case into possible medical negligence committed by the staff of the Batumi Hospital was opened, but the applicant was not granted vic tim status. After a number of investigative measures, the Batumi City public prosecutor ’ s office (“the BCPPO”) decided, on 2 August 2004, to discontinue the case. Acknowledging that the independent medical experts had established that the relevant medical practitioners of the hospital had been late in providing the applicant ’ s son with the requisite surgery, the public prosecutor still concluded that no criminal offence had been committed.

4 . In the meantime, on 27 September 2004, the Head of the Batumi Hospital fired the doctor who had been in charge of the applicant ’ s son ’ s treatment.

5 . As the applicant did not have victim status, she was not able to lodge a judicial appeal against the prosecutorial resolution of 2 August 2004. Nevertheless, on various dates in 2005 and 2006 she continued complaining before various authorities about the lack of effective investigation of the cause of her son ’ s death. Her main argument was that the surgery of 10 March 2004 on the stomach ulcer, which had been critical for saving her son ’ s life, had been belated and thus stood for negligence on behalf of the relevant medical practitioners of the Batumi hospital. In that respect, she further referred to the above-mentioned expert medical opinions according to which the doctors had been aware of the risk of internal bleeding caused by the ulcer but had failed to provide the necessary treatment in due time.

6 . On an unspecified date in 2007, the investigation into the applicant ’ s son ’ s death was reopened by the BCPPO, and the applicant was granted victim status this time. After a number of investigative measures, the public prosecutor ruled, on 4 January 2008, to close the investigation again for want of a criminal offence. The prosecutor stated, inter alia , that since no forensic examination of the body of the applicant ’ s son had been conducted immediately after his death, it was not possible to establish the exact medical cause of his death and to asses the existence of a direct link with the negligence – the belated surgery on his stomach ulcer – committed by the relevant doctors of the hospital.

7 . According to the applicant, she duly appealed against the prosecutorial ruling on 4 January 2008 to a court, as envisaged by the relevant rules on criminal procedure, but her appeal was left without examination.

8 . Simultaneously, the applicant sued the Batumi hospital, requesting pecuniary and non-pecuniary damages for the medical negligence. She named the individual doctors who had been in charge of her son ’ s treatment in the hospital as well as the Ministry of Healthcare of the Ajarian Autonomous Republic as co-respondents.

9 . By a judgment of 20 January 2006, the Batumi City Court, acknowledging that a medical error had been committed during the treatment of her son in the Batumi hospital, ruled that the hospital should pay, as a legal entity, the applicant 2,756 and 6,000 Georgian Laris (GEL) for pecuniary, in compensation for the costs of treatment of her son and the funeral services, and non-pecuniary damages respectively (some 1,300 and 2,800 Euros (EUR)). The applicant ’ s claims against the individual doctors and the Ajarian Ministry were dismissed as unsubstantiated.

10 . By a judgment of 9 February 2007, the Kutaisi Court of Appeals, whilst leaving the non-pecuniary award intact, ruled that the Batumi hospital were to pay the applicant an increased amount for pecuniary damage – GEL 6,953 (some EUR 3,300). In its reasoning part, the appellate court noted that the Batumi hospital had been operating in breach of the relevant healthcare regulations. Notably, the hospital had been noticed in performing various specialised medical services without possession of the requisite State medical licences. The applicant ’ s claims against the Ajarian Ministry of Healthcare and the individual doctors of the hospital were dismissed as unsubstantiated.

11 . By a final judgment of 14 May 2008, the Supreme Court of Georgia, whilst leaving the pecuniary award of GEL 6,953 (EUR 3,300) intact, ruled that the applicant was not entitled to receive any non-pecuniary damage. Notably, giving a particular interpretation to the relevant provisions of the Law on Patients ’ Rights, the Supreme Court stated that only the direct victim of a medical negligence, the patient, or the patient ’ s representative by law could claim non-pecuniary damage; that standing could not however be extended to close relatives of a late patient.

B. Dzebniauri v. Georgia, no. 67813/11

12 . The applicant is the mother of Mr Giorgi Dzebniauri who died on 9 April 2005 in a private hospital in Tbilisi (the medical establishment known under the name of Lechkombinati ). The cause of death was internal bleeding and sepsis caused by acute pancreatitis (sudden inflammation of the pancreas) and post-surgery pancreatic necrosis.

13 . Mr Dzebniauri had been admitted to that hospital on 4 March 2005 for pains in the gallbladder. Immediately upon admission, the doctor in charge of Mr Dzebniauri ’ s treatment there, Mr A.Tch.-shvili, had diagnosed him with acute cholecystitis and pancreatitis. Without dispensing a conservative treatment for the diagnosed condition, the doctor had directly proceeded to a radical surgical intervention on the same day – the removal of the inflamed gallbladder and the drainage of the pancreatic duct through a tiny opening. Despite that medical intervention, post-surgery pancreatic necrosis had developed.

14 . On 8 July 2005 a criminal investigation was opened into possible medical error which had caused Mr Dzebniauri ’ s death. The applicant was granted victim status. All the medical practitioners who had been involved in the surgery of 4 March 2005 and the patient ’ s subsequent treatment were questioned as witnesses. In addition, two medical forensic expertises aimed at the assessment of the adequacy of the dispensed treatment were conducted at the request of the inves tigator and the applicant on 16 December 2005 and 6 October 2006.

15 . When questioned on 14 and 2 2 July and 19 November 2007, Mr G.R.-shvili, the doctor who had assisted A.Tch.-shvili during the surgery of 4 March 2005, repeatedly stated that, in order to minimise the risk of the development of post-surgery pancreatic necrosis, certain specific pre ‑ surgery medical examinations and treatment of conservative nature were normally necessary. However, none of those preliminary measures had been undertaken by doctor A.Tch.-shvili. Instead, the doctor proceeded with an immediate and thus wholly unprepared surgery on the patient ’ s gallbladder and pancreas. Mr G.R.-shvili qualified such a premature decision to perform the surgery either as a negligence or lack of competence.

16 . As regards the above-mentioned medical forensic expertises, which were conducted by the National For ensics Bureau (“the NFB”) on 16 December 2005 and 6 October 2006, their results were contradictory. Thus, whilst the results of the first one s uggested that there had been no signs of a medical error on behalf of Dr A.Tch.-shvili, the second one suggested the contrary. Notably, the latter results, in line with Dr. G.R.-shvili ’ s opinion, stated that prior to conducting a surgical intervention, it would have been more appropriate for Dr A.Tch.-shvili to conduct a preliminary treatment of conservative nature in order to minimise the risk of development of post-surgery necrosis.

17 . Given the controversy, the applicant requested, on 8 December 2010, the State Agency for Regulation of Medical Activities to conduct another assessment of the adequacy of her son ’ s preliminary treatment and surgery of 4 March 2005. The Agency issued its expert opinion on 3 June 2011, in which it mostly subscribed to the NFB ’ s report of 6 October 2006. The Agency reiterated that prior to performing the surgery, a preliminary treatment of conservative treatment for the duration of at least forty-eight hours should necessarily have been dispensed. The Agency further identified certain other shortcomings during the treatment of the applicant ’ s son in the hospital. The recommendation was to hold the doctors who had been in charge of Mr Dzebniauri ’ s treatment disciplinary responsible. That recommendation was never implemented.

18 . According to the case file, despite the applicant ’ s regular complaints about its length, which were filed on various dates in 2008, 2009, 2010 and 2011, the criminal investigation is currently still pending. In reply to those complaints, the Chief Public Prosecutor ’ s Office, which authority is in charge of the investigation, would regularly advise the applicant, with its latest reply being dated 24 June 2011, that a final procedural decision concerning the investigation was imminent. The case file does not account for any other details concerning the progress of the investigation.

COMPLAINTS

19 . Relying on Article 2 of the Convention, the applicants complain that the respondent State failed to ensure a proper and risk-safe functioning of the relevant civilian hospitals and that no meaningful investigations into the medical errors which had caused their sons ’ deaths, capable of identifying and punishing the responsible medical practitioners, have been conducted.

QUESTIONS TO THE PARTIES

CASE SPECIFIC QUESTIONS

1. With respect to application no. 58240/08, may the applicant still claim, given the outcome of the domestic civil proceedings and the fact of the firing of the doctor who was in charge of the applicant ’ s son ’ s treatment, to be a victim of a violation of Article 2 of the Convention, within the meaning of Article 34? In this respect what was the significance of the fact that the domestic courts, relying on the relevant provisions of the Law on Patients ’ Rights, dismissed the applicant ’ s claim for non-pecuniary damage as ill ‑ founded?

2. With respect to application no. 67813/11, should the applicant have sought a civil redress for the alleged medical negligence or was his resort to the criminal law remedy sufficient for the purposes of Article 35 § 1 of the Convention?

COMMON QUESTIONS

1. Has the respondent State complied with its relevant positive obligations under Article 2 of the Convention in the present two cases?

2. I n particular, did the relevant domestic authorities ensure that the civilian hospitals where the deaths of the applicants ’ sons occurred had been operating in full compliance with relevant professional regulations aimed at the protection of patients ’ lives? Furthermore, did the relevant domestic authorities provide for an effective legal venue for establishing the cause s of the deaths and any liability on the part of the medical practitioners concerned (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I; Erikson v. Italy (dec.), no. 37900/97, 26 October 1999)?

APPENDIX

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

58240/08

14/02/2008

Mrs Gulnara SARISHVILI-BOLKVADZE

05/05/1950

Batumi

None.

67813/11

07/10/2011

Mrs Zhana DZEBNIAURI

08/01/1951

Tbilisi

Ms Tamta MIKELADZE.