SECOND SECTION

Application no. 50772/11 Erdinç KURT and others against Turkey lodged on 24 March 2011

STATEMENT OF FACTS

The applicants, Erdinç Kurt, Nursen Kurt and Duru Kurt (“the applicant”), are Turkish nationals who were born in 1974, 1975 and 2003 respectively and live in Ankara . They were represented before the Court by Mr A. Kavak and Mr. O. R. Kavak .

The facts of the case, as submitted by the applicants and appearing from the case file, may be summarised as follows.

The applicant was brought to the SSK State Hospital with the symptoms of a heart disease. From there, he was referred to the Dr. Sami Ulus Paediatrics Education and Research Hospital . The applicant had been followed for a period of two years, at the end of which it was decided that he needed heart surgery.

The applicant was operated on 19 July 2006.

As a leak around the patch (“ yama ucunda kacak ”) was detected, a fresh operation was performed on 8 February 2007.

Subsequent to the second operation oedema, cerebral haemorrhage, spasticity and hepatic failure developed.

On 6 July 2007 the applicants lodged a complaint with the Public Prosecutor of Ankara against the doctors concerned for medical malpractice. The public prosecutor referred the complaint to the Governorship of Ankara, seeking the permission required for prosecution of civil servants.

By a decision dated 6 September 2007 the Governorship of Ankara declined to grant permission for the criminal prosecution of the doctors who had been allegedly responsible for medical malpractice. Based on a preliminary investigation, it held that the patient had been suffering from a high-risk congenital heart disorder; that the treatment through surgery involved a high-risk procedure with a high complication rate; that the second operation had to be carried out for the complications that had arisen following the first operation; that the problems encountered after the second operation were neurological complications connected with the open heart surgery.

On 18 December 2007 the objection filed by the applicants against this administrative decision was dismissed by the Regional Administrative Court .

The public prosecutor, accordingly, decided to discontinue the investigation on 28 September 2007.

According to a medical report dated 11 July 2007, the applicant was diagnosed with a grave mental motor retardation due to hypoxic-ischemic encephalopathy and his disability was calculated as 92 %.

On 23 May 2008 the applicants initiated civil proceedings against the doctors, seeking pecuniary and non-pecuniary damages for medical malpractice.

The Ankara Civil Court of General Jurisdiction appointed three professors (cardiovascular surgeons) from the Ankara University School of Medicine for an expert opinion.

The professors gave their opinion on the basis of the applicant ’ s medical records without having examined him.

They observed the following: the applicant was diagnosed with dilated cardiomyopathy and ALCAPA (Anomalous Left Coronary Artery from the Pulmonary Artery); the Takeuchi procedure (intrapulmonary artery tunnel) was performed on 19 July 2006; as approximately six months after the surgery the coronary angiography had showed that there had been leakage from the patch, the second operation was carried out on 18 February 2007; on the second day after the second operation the patient had tonic- clonic seizures, as a result of which he was connected to a ventilator to assist his breathing; under intensive care a neurological sequela developed. The experts noted that surgery was required to fix the patient ’ s anomaly, also called Bland-White-Garland syndrome and that if not treated within the first year of life, the mortality rate was 80-90 %. After having given general information about the risks and complications of surgical procedure, they concluded:

“ ... the leakage that occurred after the first operation is a complication, with an incidence of 50 %. The second operation carried out in order to fix it is even much riskier than the first operation. The neurological problems that developed after the second surgery are complications of open heart surgery ... There is no medical or surgical error on the part of the doctors concerned.”

On 30 September 2009 the applicants filed an objection against the expert opinion, requesting the referral of the case to another commission of experts or to the Forensic Medicine Institute. They submitted that the expert opinion gave a general account of the risks and complications inherent in the treatment and failed to address the issue of whether the doctors had exercised the degree of skill and care that would have been reasonably expected in the circumstances of the applicant ’ s case. Their objection was not admitted.

On 3 November 2009 the first instance court rejected the applicants ’ case taking into account the patient ’ s medical records, the investigation files of the public prosecutor and the Governorship and the expert opinion. It held that the applicant was suffering from the complications of the surgeries and that his parents had been duly informed of the risks and complications.

The Court of Cassation, after having held a hearing on the same day, upheld the judgment of the first instance court on 20 April 2010. The request for rectification was rejected on 7 October 2010.

COMPLAINTS

The applicants alleged a violation of Articles 2 and 13 of the Convention on the ground that the State Party should be held responsible for the medical malpractice of its agents.

They complained of a violation of Article 6 of the Convention in that the criminal proceedings had been barred and their compensation case had not been properly examined. They submitted that another expert opinion should have been sought.

QUESTIONS TO THE PARTIES

1. Has there been a violation of the applicants ’ rights guaranteed by Article 6 and/or Article 8 of the Convention?

a) In particular, regard being had to the below-listed allegations, could the expert opinion, which constituted the main piece of evidence relied on by the domestic civil courts, be considered to have enabled the proper determination of the applicants ’ case?

aa ) The expert opinion was given on the basis of the medical records without any examination of the patient in person.

ab ) The expert opinion cited the statistics about the risks and complications involved in the treatment and deduced therefrom in abstracto that there was no medical or surgical error attributable to the doctors, without providing any case-specific information.

b) In the light of the Court ’ s findings in the Mantovanelli v. France (18 March 1997, §36, Reports of Judgments and Decisions 1997 ‑ II) could it be held that the applicants were afforded a real opportunity to comment effectively on the expert opinion and present their case?

2. 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?