FOURTH SECTION

Application no . 53403/10 Roman WOJTOŃ against Poland lodged on 7 September 2010

STATEMENT OF FACTS

The applicant, Mr Roman Wojtoń , is a Polish national, who was born in 1962 and lives in Krakow .

A. The circumstances of the case

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

In 2006 the applicant ’ s son S. born in 1988 was diagnosed as suffering from acute lymphoblastic leukaemia ( ostra białaczka limfoblastyczna ). From 4 May to 14 June 2006 he was hospitalised in the Hematology Ward of the hospital of the Kraków Medical University . It was decided that he should undergo a stem cell transplantation. His condition was such as to make him eligible for this treatment.

On 24 January 2007 the applicant ’ s son was admitted to the Hematology and Stem Cell Transplantation Ward of the Katowice University Hospital for the transplantation of donor stem cells to be performed.

On 7 February 2007 the operation was carried out. It went well and the boy was discharged from the hospital on 5 March 2007 in good health. During his stay at the hospital he had a minor throat infection.

His condition was afterwards supervised by a clinic specialising in the treatment of patients who have had stem cell transplants.

His health later deteriorated as the transplant was rejected. He was diagnosed as suffering from “graft-versus-host” disease ( choroba przeszczep przeciwko gospodarzowi ).

He was admitted to the same Katowice hospital on 2 July 2007 as his condition had deteriorated, he had serious stomach problems, was dehydrated and very weak.

S. died on 26 August 2007. His death was caused by hepatic coma and acute respiratory and circulatory deficiency ( śpiączka wątrobowa , ostra niewydolność oddechowo-krążeniowa ).

It came to light shortly before his death that he must have been infected with hepatitis B virus (HBV) which had contributed to the general deterioration of his health. The applicant submits that the infection must have occurred in the Katowice hospital before the operation or shortly afterwards as his son had tested negative for hepatitis before the transplant. An autopsy was not performed, the family not having requested one.

Subsequently the applicant sought to institute criminal proceedings against the doctors for having unintentionally caused his son ’ s death.

On 6 March 2008 the investigation was stayed by the Katowice District Prosecutor in order to obtain an expert opinion as to the cause of death and whether the treatment followed in the case had been appropriate.

On 3 April 2008 the prosecutor requested specialists in hematology from the Gdańsk Medical University to prepare an opinion.

The opinion was submitted in April 2009. The experts were of the view that the diagnosis and treatment of the applicant ’ s son had been fully compliant with the generally accepted standards for clinical practice followed in Poland in cases of acute leukaemia. Rejection of transplants was, despite the progress of medical science, the most common cause of death of patients who had stem cells transplants. The applicant ’ s son had been examined prior to the transplant to determine whether he had been infected with hepatitis. The result of the test had been negative. Antibodies had been found in his blood, either because he had been successfully immunised by vaccination or because he had been infected in the past. It was impossible to establish whether he could have been infected with hepatitis B despite the presence of antibodies in his blood after the operation because that would have necessitated molecular tests which were not normally carried out as part of the standard procedure defined by the clinical standards in similar cases, referred to above.

On 29 May 2009 the investigation was resumed by the prosecuting authorities. It was discontinued on the same day, regard being had to the expert opinion. The prosecutor noted that the experts had concluded that the treatment followed in the case had been consistent with the applicable clinical standards. The applicant ’ s son ’ s dea th had been caused by the graft ‑ versus-host disease and his condition had been aggravated by the infection by hepatitis B virus and concurrent generalised mycosis. The prosecutor concluded that the medical staff had no case to answer.

The applicant appealed against this decision. He argued that his son had been infected with hepatitis B during his treatment in the hospital in Katowice . He further argued that after his admission in July 2007 he had initially been treated for the rejection of the transplant but not against the hepatitis. It was only after several days that the diagnosis had been made. The doctors had therefore failed to make a correct and timely diagnosis of his condition and to address it properly.

On 5 November 2009 the Katowice- Wschód District Court quashed the decision and remitted the case. It was of the view that the prosecuting authorities had not established all the circumstances relevant for the outcome of the case with sufficient clarity. It ordered that an additional expert opinion should be prepared. The court made a list of detailed questions concerning the treatment of the applicant ’ s son which were to be addressed by the experts in their supplementary opinion.

The court noted in passing that the opinion submitted in the proceedings was already very detailed, but still not complete for the purposes of answering the essential question, namely whether death had been caused primarily by the rejection of the transplant or by that rejection taken together with additional ailments from which the patient had suffered, including infection with hepatitis B. It went on to state that a thorough establishment of the facts of the case would make it possible to convince the parents of the deceased that any possible shortcomings which had occurred during the treatment had not caused his death, or to formulate, as the case may be, criminal charges against persons responsible for these shortcomings.

On 20 November 2009 the Katowice District Prosecutor stayed the investigation in order to obtain the supplementary opinion ordered by the court. A list of seven detailed questions concerning the treatment, in particular after the applicant ’ s son ’ s admission to the hospital in July 2007, was prepared, to be answered by the same experts who had drawn up the first opinion. The questions were identical to the questions suggested by the court in its decision of 5 November 2009.

The opinion was submitted on 17 February 2010. The experts upheld the conclusions of the first opinion.

On 17 March 2010 the prosecuting authorities resumed the investigation. On the same day it was discontinued by way of a decision given by the Katowice ‑ PoÅ‚udnie District Prosecutor.

The prosecuting authority recounted the decisions and procedural measures taken during the investigation. It summarised the findings of the first expert opinion (see paragraph 15 above). It noted that the supplementary expert opinion confirmed the previous findings. The prosecutor concluded that in the circumstances of the case it was impossible to hold that any specific person was responsible for the patient ’ s death and that a criminal offence within the meaning of Article 155 of the Criminal Code had been committed. It noted in passing that an autopsy had not been carried out in the case.

This decision was served on the applicant with information that no appeal was possible it as the case had been examined by the prosecuting authorities for the second time. The applicant was further informed that it was open to him to institute criminal proceedings by way of a private bill of indictment ( subsydiarny akt oskarżenia ). He did not do so.

B. Relevant domestic law

Article 155

“Anyone who unintentionally causes the death of a human being shall be subject to the penalty of deprivation of liberty for a term of between 3 months and 5 years.”

COMPLAINT

The applicant complains in substance under Article 2 of the Convention that the medical afforded to his son was inadequate and caused the patient ’ s death. He further submits that the investigation was ineffective.

QUESTION s TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies in respect of the alleged violation of Article 2, as required by Article 35 § 1 of the Convention?

2. Has the applicant ’ s son ’ s ri ght to life, ensured by Article 2 of the Convention, been violated in the present case? In particular, did the quality of the medical treatment he received comply with the requirements of this provision?

3. Having regard to the procedural protection of the right to life (see , among many other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48-51 , ECHR 2002 ‑ I ; Byrzykowski v. Poland , no. 11562/05, § 104-105 , 27 June 2006 , Å ilih v. Slovenia [GC], no. 71463/01, § 153-155 , 9 April 2009 ), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?

In this connection, did the authorities display due diligence and expedition in conducting the investigation?

Were the next of kin involved in the proceedings to an appropriate extent ( see, Jordan v. the United Kingdom , no. 24746/94, §§ 102-109) ?

The Government are requested to submit copies of the expert opinions prepared for the purposes of the investigation.