FOURTH SECTION

Application no. 23811/09 Pawe Å‚ GRZEGORCZYK against Poland lodged on 26 April 2009

STATEMENT OF FACTS

The applicant, Mr Paweł Grzegorczyk , is a Polish national, who was born in 1930 and lives in Cracow. He is r epresented by his father, Mr S. Grzegorczyk .

The circumstances of the case

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

1. Criminal investigation

In 2000 the applicant was a victim of a traffic accident which resulted in a serious injury to his spine. He was first admitted to a hospital in Myślenice and subsequently taken to the L. Rydygier hospital in Cracow. He was operated on eleven days after the accident.

On an unspecified later date prior to October 2002 an investigation was instituted concerning a suspicion of medical negligence committed by the chief physician of the orthopaedic ward of the Cracow hospital. A medical expert report was prepared for the purposes of the investigation. The expert was of the view that the applicant had become completely paralysed mainly as a result of the delay with which the operation after the accident had been carried out. It was further stated that the negligence could be attributed to the chief physician of the orthopaedic ward where the applicant had been treated after the accident.

Subsequently a bill of indictment was lodged with the Cracow District Court. The court returned the bill to the prosecuting authorities, finding that the evidence gathered during the investigation was incomplete. In particular, a copy of the applicant ’ s medical record should have been included into the file.

It was subsequently established that a part of the applicant ’ s medical records of the treatment in the Cracow hospital was lost.

Further experts had been appointed by the prosecuting authorities.

In his non-dated letter in reply to the prosecution ’ s questions put to him in their letter of 25 October 2002, the firs t expert, a specialist in neuro ‑ orthopaedics, stated that the methods applied in the applicant ’ s treatment immediately after the accident were outdated, did not respect the current procedures normally applied in cases of serious spine injuries and had seriously deteriorated the applicant ’ s neurological condition. In particular, the delay in the operation lacked sound medical grounds and deprived him of chances of an improvement in the future.

Subsequently, on 18 April 2003, the same expert, replying to questions formulated by the prosecuting authorities, found that there had been a number of serious irregularities in the applicant ’ s treatment in the Cracow hospital for which the chief physician of the orthopaedic ward was essentially responsible. Certain decisions taken by the surgeons failed to respect best clinical practices in similar cases. The expert concluded that these failures had beyond any doubt resulted in the applicant ’ s disability.

The prosecutor, relying on a decision of the Kraków District Court given on 14 October 2003, assigned further experts to submit their opinions on the case. In their conclusions dated 30 December 2005 four forensic experts stated that no medical negligence had been committed in the case. They noted that in the absence of the lost medical records their opinion could not be held to give a full picture of the issues involved.

On an unspecified date another expert opinion prepared by a forensic medicine specialist from Poznań Medical University was submitted to the prosecution. The experts concluded that the applicant ’ s treatment had not been effective, but could not be regarded as medical malpractice.

On 18 February 2008 the Cracow District Prosecutor discontinued the investigation, finding that the chief physician of the orthopaedics ward had no case to answer ( brak ustawowych znamion czynu zabronionego ).

The applicant ’ s lawyer appealed, submitting that the prosecution had failed to establish properly the circumstances of the case. The prosecution had entirely failed to refer to the evidence and conclusions of the first expert ’ s report. The experts who had prepared the second opinion had stated that the missing parts of the applicant ’ s medical records had made it impossible for them to establish a complete picture of the relevant facts. The prosecutor should have made efforts in order to establish the circumstances in which the part of the applicant ’ s medical records concerning his treatment immediately after the accident had been lost. This evidence was vital for the outcome of the investigation. Doctors who had carried out an operation in Piekary Śląskie hospital had not been questioned. As a result, the decision to discontinue the investigation had been made on the basis of manifestly insufficient evidence.

On 15 October 2008 the Cracow District Court upheld the contested decision. The court noted that the experts had not had at their disposal the full medical records. The prosecution had made efforts to find the lost documents. However, as their efforts had failed both the experts and the prosecuting authorities had had no choice but to act on the basis of the evidence available to them. The prosecution recalled that the first expert opinion relied on the applicant had later been found to be insufficiently complete. All doubts as to the facts of the case had to be interpreted pursuant to in dubio pro reo principle. The second and third expert reports were concordant and provided that no clinical malpractice had occurred. The prosecutor had not erred in finding that these reports had provided a sufficient basis for its decision.

2. Disciplinary proceedings

On 15 February 2006 the Chief Attorney for Professional Responsibility ( Naczelny Rzecznik Odpowiedzialności Zawodowej ) discontinued disciplinary proceedings against the chief physician of the orthopaedic ward of the Cracow hospital, finding that the disciplinary liability had become prescribed after five years from the events concerned. The applicant appealed.

On 25 May 2006 the Principal Medical Court ( Naczelny SÄ…d Lekarski ) upheld the contested decision.

COMPLAINTS

The applicant complains under Article 3 of the Convention that the investigation concerning criminal responsibility for the allegedly insufficient medical care he had received after his accident lasted for an excessively long time and was therefore ineffective. He referred to the fact that his medical records essential for the assessment of the adequacy of his treatment had been had been lost. The prosecution had failed to make adequate efforts to find the records. As a result, the decision to discontinue the investigation was based on insufficient evidence. He further argues that the authorities disregarded an unequivocal expert report pointing to the fact that his treatment had failed to follow procedures and practices appropriate in cases of serious spine injuries. The applicant submits that the suspect benefited from the negligence of the staff involved in the handling of his medical file.

QUESTION TO THE PARTIES

Having regard to the procedural protection from inhuman or degrading treatment, in so far as applicable also in the context of allegations of medical malpractice resulting in serious health damage, was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?