SECOND SECTION

Application no. 12370/10 Mustafa AKSOY and others against Turkey lodged on 24 February 2010

STATEMENT OF FACTS

THE FACTS

1. The applicants, Mr Mustafa Aksoy (“the applicant”), Ali Rıza Aksoy (“the second applicant”) and Ayşe Demet Aksoy (“the third applicant”), are Turkish nationals who were born in 2001, 1970 and 1975 respectively and live in Erzurum . They were represented before the Court by Mr T. Kılınboz, a lawyer practising in Erzurum . The facts of the case, as submitted by the applicants and appearing from the case file, may be summarised as follows.

A. The medical history of the applicant

2. The second and third applicants took their child, the applicant, to the Paediatrics Department of the Atatürk University Yakutiye Hospital on 3 or 5 April 2002 for the first time. Since he had been two months old, he was turning black-and-blue when crying and being stricken with recurring seizures without fever. Based on an EEG, ECHO and a blood analysis, the doctors diagnosed the child with iron-deficiency anaemia and held that the attacks were blue breath holding spells (“katılma nöbetleri”), not associated with epilepsy.

The applicant began treatment for iron-deficiency anaemia. In the meantime, the seizures continued. The severity and frequency of them remains disputed.

3. On 27 January 2003 the applicant was admitted again to the aforementioned Paediatrics Department due to an attack with frothy saliva coming from the mouth. The doctors found no neurological pathology.

4. On 19 June 2003 the applicant was taken to the Emergency Service of the Erzurum Numune Hospital due to continuing seizures. As the seizures could not be stopped, he was transferred to the Atatürk University Aziziye Hospital, half-conscious. His general condition was identified as generalised tonic-clonic seizure and symptomatic epilepsy. Some anticonvulsants were employed. After an injection on his right leg, his seizures worsened and frothy saliva started coming from his mouth.

5. Since the applicant was not responding to the treatment, he was transferred to the Paediatrics Department of the Atatürk University Yakutiye Hospital . There, he was given medication as an infusion through a needle placed in a vein in his right hand. However, his seizures could not be brought under control; he lost consciousness and stopped breathing. Therefore, he was taken to the intensive care unit and attached to a ventilator.

6. Approximately a day after his admission to the intensive care unit the applicant ’ s hand began swelling. The following day the applicant ’ s hand started getting black-and-blue from the fingertips. On 22 June 2003 the applicant was diagnosed with circulation disorder.

7. Despite the treatment administered, on 26 June 2003 the body tissues in the applicant ’ s right hand underwent necrosis. On 8 July 2003 the applicant ’ s hand affected with gangrene was surgically amputated.

8. The amputated hand ’ s biopsy dated 17 July 2003 showed acute panniculitis (with candida albicans), venous thrombosis and fungal infection.

9. On 22 July 2003 the follow-up of the applicant passed from the Anaesthesia and Reanimation Department to the Paediatrics Department, where the applicant stayed until 29 July 2003, the date on which the second and third applicants decided to continue the treatment in the Paediatrics Department of the Hacettepe University Hospital in Ankara . The chief physician of the Atatürk University Yakutiye and Aziziye Hospitals and the Health Board gave their approval for the referral of the applicant to the aforementioned hospital.

10. On 30 July 2003 the applicant was admitted to the Hacettepe University Hospital due to the suspicion of sequelae of status epilepticus and leiden mutation heterozygosis.

11. Anomalies that might indicate a degenerative disease were reported based on an MRI scan dated 7 August 2003. Antiepileptic treatment was continued. Based on the haematological analyses, consultation of other departments and professors, the applicant was diagnosed with “factor v leiden mutation heterozygosis” and “thrombotic/thromboembolic tendency”.

12. The applicant was di scharged from the hospital on 5 September 2003.

B. The administrative proceedings

13. In a petition dated 2 March 2004, the applicants applied to the President of the Atatürk University , seeking compensation. The petition was deemed to have been rejected by virtue of law since it had gone unanswered.

14. On 17 May 2004 the applicants instituted compensation proceedings before the Erzurum Administrative Court (the “EAC”) against the Atatürk University for service fault (“hizmet kusuru”) in providing medical care.

15. On 18 January 2005 the EAC referred the case to the Forensic Medicine Institute, requesting an expert opinion.

16. On 27 April 2005 the applicant was examined both by the committee of the Forensic Medicine Institute and the Neurology Department of the Istanbul University CerrahpaÅŸa School of Medicine.

17. The latter established that the MRI scan dated 7 August 2003 and clinical findings were indicating cerebral hypoxia, the date of which remained indeterminable in the absence of any previous MRI examination which might give an idea about the applicant ’ s early neurological development. Therefore, it was not possible to determine whether the applicant ’ s current condition had emanated from the status epilepticus or from a preceding nervous system damage/disorder which had caused the status.

18. At its meeting held on 16 May 2005 with the participation of a cardiovascular surgeon, the Forensic Medicine Institute issued its opinion. The report concluded the following:

“the gangrene in the right hand that led to its amputation could be related to venous or arterial thrombosis, for which the existence of heterozygote mutation might have provided a basis; the treatment administered from the beginning was in accordance with medical standards and the applicant ’ s current condition ensued from the progressive neurodegenerative disease he had.”

19. On 22 July 2005 the applicants filed an objection against the expert opinion. They pointed out that the issue of whether the gangrene had been caused by unhygienic conditions in the hospital had not been addressed; that the committee of the Forensic Medicine Institute which had dealt with their case had not been competent and that further examination had been needed. They requested the court to obtain expert evidence from the Plenary Assembly of the Forensic Medicine Institute, the High Health Board and/or the Istanbul University Forensic Medicine Institute. They relied on the case-law of the high courts on the necessity for seeking fresh expert evidence where an opinion of the Forensic Medicine Institute was found insufficient.

20. The EAC dismissed the objection on the grounds that the applicants ’ submissions did not put in doubt the expert report. It held that the expert report was adequate.

21. On 15 September 2005 the EAC rejected the applicants ’ case, relying on the expert opinion. It considered that no gross service fault (“ağır hizmet kusuru”) was attributable to the agents of the administration. The court held that the applicants were to bear the legal costs and expenses, and to pay the defendant administration, in respect of attorneys ’ fees, TRY 8,424.

22. The applicants appealed against the judgment.

23. The rapporteur judge proposed to the Supreme Administrative Court to quash the judgment in respect of the attorneys ’ fees imposed on the applicants. Referring to the applicable laws and regulations, he held that, in contrast to a partial success of a claim, where a case was rejected as a whole, the attorney ’ s fee should not be calculated by reference to the amount claimed and, instead, a fixed sum should be awarded.

24. The prosecutor of the Supreme Administrative Court , for his part, considered that the judgment should be set aside on the merits for lack of proper examination. He particularly pointed out that the conclusions of the expert opinion had suggested that if the applicant ’ s genetic disease had been diagnosed at the beginning, the amputation of the applicant ’ s hand could have been avoided. He concluded that the opinion of the Forensic Medicine Institute should have been clarified as to this possible causal link.

25. On 23 October 2007 the Supreme Administrative Court did not follow the opinions of the rapporteur judge and the prosecutor and upheld the judgment of the first instance court .

26. The applicants ’ request for rectification was rejected on 15 September 2009.

27. In the medical report of the Health Board of the Erzurum Regional Education and Research Hospital dated 17 September 2009, the applicant ’ s disability is calculated at 91 percent.

COMPLAINTS

28. The applicants complain under Article 2 and, in substance, Article 8 of the Convention that the Turkish State is responsible for the acts and omissions of the Atatürk University (State) Hospitals and of the doctors, civil servants. They allege that the amputation of their son ’ s hand as well as his mental disability resulted from gross medical negligence, particularly, from the failure to diagnose the applicant ’ s condition in a timely manner. According to them, the doctors interfered as such with the applicant ’ s right to life and personal integrity and breached their duty to provide a high-level medical care arising not only from the Convention but also from the Constitution. In this connection the applicants point out that they are entitled to adequate medical services due to the social security scheme to which they are paying contributions.

29. The applicants rely on their right to a fair trial under Article 6 of the Convention in several respects.

30. Firstly, they complain about the length of the administrative proceedings, which lasted 5 years, 4 months and 4 days.

31. Secondly, they point out that no disciplinary or criminal proceedings were instituted ex officio against those who are allegedly responsible for the negligence complained of.

32. Thirdly, the applicants maintain that their case was not properly examined.

They call into question the scientific quality and reliability of the expert opinion. They also challenge the expertise as well as the composition of the committee that gave the expert opinion. According to them, the Forensic Medicine Institute is neither independent nor impartial. The institution is a part of the entire body of administration which the State hospitals also belong to and its reports are often marked by professional solidarity. The doctors working at the Forensic Medicine Institute are susceptible to pressure from superior officials and hospitals ’ management.

The applicants also argue that the expert report drawn up by the Forensic Medicine Institute was deficient in that it did not address any issue material to the trial, specifically:

a) the reasons for which the Atatürk University hospitals had not sought to establish the conditions lying behind the applicant ’ s recurring attacks and could not diagnose his disease for a period of one year and three months, whereas the Hacettepe University Hospital managed to make the adequate diagnosis and to start a treatment within just three months;

b) the fact that, if the applicant had got the correct diagnosis, it would have been known that he was extremely vulnerable to infections and needed special care;

c) the extent to which the infectious complications (acute panniculitis, venous thrombosis and fungal infection) that caused the gangrene and necessitated the amputation resulted from unhygienic conditions in the hospital.

In view of the foregoing, the applicants maintain that the EAC should at least have admitted their objection against the expert report and referred their case to the Plenary Assembly of the Forensic Medicine Institute.

33. The applicants complain that the amount of 8,424 TRY (more than 3,500 Euros) awarded to the administration in respect of legal costs and expenses imposed on them a disproportionate burden. They contend that this was against the applicable laws and regulations. They further submit that the administration, being the judgment creditor, levied execution against their assets and attached the second applicant ’ s salary for a period of five years.

34. The applicants complain also of a violation of their right to an effective remedy, as guaranteed by Article 13 of the Convention, in that the national authorities failed to carry out an investigation, criminal and/or disciplinary, into their allegations, holding that in cases of gross negligence an investigation should be carried out ex officio .

They submit that they did not lodge a criminal complaint, fearing that this would have had a negative effect on the applicant ’ s treatment.

QUESTIONS TO THE PARTIES

1. Could the applicants be considered to have exhausted the domestic remedies in respect of the applicant ’ s mental disability? If yes, could the Atatürk University Hospitals be regarded as having acted diligently given the lack of an in-depth questioning of the applicant ’ s condition for a period of one year and three months at the early stages of the treatment, in particular the lack of an MRI scan prior to the applicant ’ s referral to the Hacettepe University as pointed out in the opinion of the Forensic Medicine Institute (see paragraph 17 of the facts)?

2. Has there been a violation of the applicants ’ right to respect for their private and family lives, contrary to Article 8 of the Convention?

a) Is the requirement that the negligence of the administration should be “gross” in order to award compensation for medical negligence compatible with the obligation of the State Party to protect individuals ’ physical integrity?

b) Why did the Atat ü rk University Hospitals not carry out an in-depth examination of the applicant for a period of one year and three months? Has there been any negligence of the Atat ü rk University Hospitals ’ health professionals in the late diagnosis of the applicant ’ s genetic condition?

c) In view of the difference in treatment between the Atatürk and Hacettepe University Hospitals, could the State Party be considered to have made adequate provision for securing high professional standards among health professionals and protecting the patients ’ rights guaranteed by the Convention ( mutatis mutandis, Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 ‑ V)?

3. Have there been violations of the applicants ’ rights guaranteed by Articles 6 and/or 8 of the Convention?

a) Could the expert opinion given by the Forensic Medicine Institute be considered to have enabled the determination of the applicants ’ case?

aa) The expert opinion established a causal link between the applicant ’ s genetic condition (heterozygote mutation) and the gangrene that led to the applicant ’ s hand amputation. Does this mean that the amputation of the applicant ’ s hand could have been avoided, if the applicant ’ s genetic condition had been discovered in a timely manner?

ab) What could be the reasons for which the Atatürk University Hospitals had not advanced the examination of the applicant before 19 June 2003? How can the difference between the hospitals involved in the diagnosis, tests and examinations carried out be explained?

ac) Even assuming that the diagnosis would have been difficult at the beginning of the process, was the general circulation disorder detected on 22 June 2003 in the applicant ’ s limbs not enough to raise doubts as to the existence of a systemic problem? Was there any scientific reason to suppose that such a circulation disorder had arisen from the applicant ’ s already known neurological situation, rather than a different unknown condition?

ad) To what extent did the acute panniculitis and fungal infection, pointed to in the biopsy report as the causes of the gangrene, result from unhygienic conditions in the hospital? To what extent might they have aggravated the applicant ’ s condition?

In this connection, the State Party is invited to submit the curriculum vitae of the doctors who signed the expert opinion and to provide detailed information on the composition of the committee of the Forensic Medicine Institute which dealt with the applicants ’ case.

b) Was the applicants ’ case examined properly?

c) How were the costs and expenses, in particular attorneys ’ fees, to be incurred by the applicants calculated? Was the calculation made in accordance with the applicable laws and established case-law of the Supreme Administrative Court ? Was the amount imposed on the applicants in the present case reasonable?

d) Could the length of the civil proceedings be considered as reasonable in the present case?

4. Did the applicants have a fair hearing in the determination of their civil rights and obligations, in accordance with Article 6 § 1 of the Convention? In particular, were the principles of equality of arms and reasoned judgment respected (see Mantovanelli v. France , 18 March 1997, §36, Reports of Judgments and Decisions 1997 ‑ II and Pronina v. Ukraine , no. 63566/00, §23-25 18 July 2006)?

5. Has there been a violation of Article 3 in relation to the applicants ’ suffering and emotional distress on account of the inadequacy of the investigation into the applicant ’ s severe medical condition?