FOURTH SECTION

Application no. 6738/12 Jacek Stanisł aw WYGODA and Katarzyna WYGODA against Poland lodged on 24 January 2012

STATEMENT OF FACTS

The applicants, Mr Jacek Stanisław Wygoda and Ms Katarzyna Wygoda , are Polish nationals, who were born in 1965 and 1971 respectively and live in Lubień .

A. The circumstances of the case

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

On 28 April 2005 the second applicant gave birth in Ujastek hospital in Kraków to a baby girl, M. At birth the child ’ s condition was assessed at ten points on the ten-point Apgar scale. On 30 April 2005 M. ’ s condition worsened. The paediatrician at the neonatological ward was of the view that she might be suffering from a congenital heart condition and recommended that she be examined by a cardiologist from a specialised paediatric hospital Prokocim in Kraków .

On 5 May 2005 Dr A.R. from Prokocim hospital examined M. and found that she was suffering from a non-life-threatening cardiological condition. He refused to admit her to the cardiological ward of Prokocim hospital. She was finally admitted to that ward on 11 May 2005, apparently because of the applicants ’ insistence and only for observation. No recommendation for an operation was made and no definitive diagnosis was established.

On 11 May 2005 M. fell into a coma and was transferred to the intensive care unit. On 16 May 2005 she was dia gnosed as suffering from a life ‑ threatening condition known as hypoplastic left heart syndrome. She remained in a critical state since 11 May 2005. She was operated on 19 May 2005.

As a result of the incident of 11 May 2005, M. cannot walk, use her hands or speak. She was later assessed as suffering from total disability.

On 7 December 2005 the applicants requested the Kraków District Prosecutor to institute an investigation of charges of causing immediate danger to M. ’ s health and life by failing to make a timely diagnosis of her condition.

The investigation was opened on 12 January 2006. A number of witnesses were questioned, including the applicants, various nurses and doctors involved in the treatment of M., both from the Ujastek and Prokocim hospitals. To date more than 39 witnesses were questioned by the prosecuting authorities.

On 15 September 2006 the prosecutor appointed an expert in neonatology, Ms J. D. In her opinion she indicated, inter alia , that a foreign expert should be appointed in the case, given that there were a limited number of cardiologist-neonatologists in Poland, they knew each other and there were various professional links between them. The appointment of an expert from abroad would ensure that a completely impartial opinion would be prepared.

From September 2007 until January 2008 the prosecuting authorities tried to find an expert abroad, to no avail.

On 11 January 2008 the prosecutor requested the cardiological ward of the Gdańsk Medical University, directed by J.E, to submit another expert opinion for the purposes of the case. The applicants applied for this expert to be disqualified, indicating that he was a friend of A.R., the chief physician of the cardiological ward at Prokocim hospital. This request was subsequently dismissed.

On 11 and 29 January 2008, on 22 July 2009 and on 15 February 2010 the prosecutor refused to allow the applicants ’ requests to appoint an expert from abroad for the purposes of submitting an opinion on the child ’ s treatment. In their requests the applicants referred to the view expressed by J.D. in her report.

In March 2008 the Forensic Medicine Department of the Gdańsk Medical Academy informed the prosecutor that the preparation of the expert report could last six to twelve months. On a number of occasions in 2008 the prosecuting authorities repeatedly prompted the Gdansk Medical Academy to speed up the preparation of the medical opinion.

On 11 December 2008 the General Prosecutor ( Prokuratura Krajowa ) transferred the case for further examination to the Łódź Appellate Prosecutor who subsequently designated the Piotrków Trybunalski District Prosecutor to deal with the case, having regard to the fact that the first applicant had been, until March 2007, working as a prosecutor in Kraków and Myślenice . It was therefore necessary to transfer the case in order to ensure that prosecutors dealing with the investigation were not biased.

In January 2009 the Gdansk Medical Academy informed the prosecutor that the preparation of the opinion would most likely start in April or May 2009. In May 2009 the prosecution was informed that the preparation would start on an unspecified date in summer 2009.

On 22 June 2009 the prosecutor stayed the proceedings, having regard to the delay in the preparation of the expert opinion by specialists from the Gdańsk Medical Academy. The applicants appealed. On 4 September 2009 the Kraków District Court allowed their appeal. The investigation was subsequently resumed.

In October and November 2009 the prosecuting authorities were informed that Dr Z.J. of the Gdańsk Medical Academy was working on the case.

On 1 December 2009 the applicants lodged a complaint with the Kraków Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time ( Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) (“the 2004 Act”).

The complaint was dismissed on 17 February 2010. The court acknowledged that the proceedings had lasted a very long time, but it could not be held against the prosecuting authorities as they had repeatedly and conscientiously tried to prompt the experts to submit their opinion. The opinion was crucial for the outcome of the case.

In the meantime, on 16 December 2009, Prof. J.E. from the Gdańsk Medical Academy requested the prosecution to release him from the obligation to prepare the expert report, referring to the fact that he knew well A.R., the chief physician of the cardiology ward in Prokocim hospital.

On 11 May 2010 the expert opinion prepared by Dr Z.J. from the Gdansk Medical University was submitted. He confirmed that M., suffered from a congenital heart malformation, but did not provide any view on the quality of care given to her immediately after her birth as he was not a cardiologist.

On 31 May 2010 the investigation was discontinued. The applicants appealed.

Apparently, after the applicants had submitted their appeal, another expert A.S. was assigned to the case. He submitted his report on 22 March 2010 and a supplementary report on 7 July 2010.

On 24 March 2011 the Supreme Court ordered that the applicants ’ appeal be examined by the Lublin District Court, allowing the Kraków District Court ’ s request to this effect.

On 25 August 2011 the Lublin District Court quashed the decision to discontinue the investigation. It was, inter alia , of the view that the expert opinion prepared by A.S. for the purposes of the case had entirely failed to address the questions put by the prosecuting authorities. It was incomplete and superficial ( niepełna i powierzchowna ). A new expert opinion should be prepared with a view to assisting the prosecuting authorities in establishing the facts of the case.

The investigation was subsequently resumed. On 5 December 2011 expert A.S. submitted a supplementary report.

In December 2011 the Łódź Medical University accepted to prepare an expert opinion for the purposes of the case by 31 July 2012.

On 13 February 2012 the applicants lodged another complaint with the Kraków Regional Court about a breach of their right to have their case heard within a reasonable time

On 11 May 2012 the Kraków Regional Court dismissed the complaint about a breach of the right to a trial within a reasonable time. The court again referred to the difficulties in obtaining expert opinions for the purpose of the case.

The proceedings are still pending before the first-instance prosecuting authorities.

On 14 February 2013 the applicants ’ daughter died.

B. Relevant domestic law and practice

Exposing a person to an immediate danger of loss of life is a criminal conviction punishable under Article 160 § 2 of the Criminal Code.

COMPLAINT

The applicants complain that the investigation concerning responsibility for the allegedly insufficient medical care their daughter received after her birth has lasted an excessively long time and was therefore ineffective.

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?