THIRD SECTION

Application no. 33011/08 by A. K. against Latvia

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Ms A. K. , is a Latvi an national who was born in 1961 and lives in RÄ«ga Parish. She is represented before the Court by Ms S. Olsena, a lawyer practising in RÄ«ga .

A. The circumstances of the case

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

1. Antenatal medical care

3 . On 18 October 2001 the applicant, who was forty years old at that time and who had two children, underwent a gynaeco logical examination at the A. H ospital . Her doctor , L. , estimated that the applicant was in the fifth or sixth week of pregnancy.

4 . According to the applicant ’ s medical records examined by the national courts, on 15 January 2002, in her eighteenth week of pregnancy, the applicant had an appointment with doctor L . The doctor suggested that the applicant have a consultation with a specialist and, inter alia , issued a referr al for the applicant to undergo an alpha-fetoprotein (“AFP”) test. The applicant later alleged that she had not in fact been referred for the AFP test by doctor L. and, consequently, ha d not take n the test.

5 . From 24 to 31 January 2 002 , the app licant was admitted to the A. H ospital as an inpatient due to feeling general ly unwell . From February to June 2002 the applicant regularly consulted doctor L. On 5 June 2002 the applicant gave birth to a daughter suffering from Down ’ s syndrome.

2. Examination of the quality of the applicant ’ s medical care

6 . After the birth of her daughter , the applicant complained to the Inspectorate for Quality Control of Medical Treatment ( MADEKKI – “the Inspectorate” ) about the quality of the antenatal medical care provided by L. In particular, the applicant complained that the doctor had failed to refer her for the AF P test , which would have indicate d the risk of foetal abnormality .

7 . On 25 July 2002 the Inspectorate noted that , according to the applicant ’ s medical re cords, on 15 January 2002 , in the eighteenth week of the applicant ’ s pregnancy, doctor L. had referred her for the AF P test. However , the doctor had failed to ensure that the applicant t ook the test. It also established that the applicant ha d failed to inform the doctor that her eldest son had suffered from a congenital genetic disorder . It established that the applicant ha d received antenatal medical care in accordance with national law, save for the AF P test. The Inspectorate concluded that doctor L. had failed to ensure that the applicant took the AF P test, which was contrary to Ordinance No . 324 concerning antenatal and prenatal care, issued by the Ministry of Welfare on 20 October 1995. The doctor was given an administrative fine .

3. Attempts to institute criminal proceedings

8 . On 20 October 2004 the applicant asked the Office of the Prosecutor to investigate alleged negligence on the part of doctor L. She also asked the office to investigate alleged falsification of her medical record s. According to the applicant, the doctor had entered data into her medical records after the fact , including a referral of her for the AF P test. To prove the allegation , she submitted an unauthorised copy of her medical records made in 2002 which did not contain a referral for the AF P test.

9 . In November 20 04 and April 2005 the S. Police Department refused to institute criminal proceedings. After having questioned doctor L. , the investigators established that the applicant had been referred for the test but that she had not turned up for it. In addition, the investigators found that there were n o technical means available to precisely establish the tim e when the contested data had been entered into the applicant ’ s medical file. The Office of the Prosecutor overturned both decision s and remitted the complaint for further investigation. On 30 September 2005 the S. Police Department repeatedly refused to institute criminal proceedings. It established that it was not possible to determine whether the disputed referral for the AFP test had been missing from the applicant ’ s medical records in 2002.

10 . Upon an appeal by the applicant , on 17 May 2006 the Office of the Prosecutor revoked the last-mentioned decision and the applicant ’ s medical records were sent for technical analysis . The experts were asked to compare the original medical records and the copy of 2002 and establish whether the original doc uments had been modified. The expert report of 7 July 2006 concluded that the medical r ecords were not falsified but that they had been supplemented with new information over an extended period of time. On 12 September 2006 the applicant was informed that the criminal proceedings had been terminated owing to the expiry of the statutory limit ation period .

4. Civil proceedings

11 . Meanwhile, on 16 August 2005 the applicant submitted a statement of claim for damages against the A. H ospital. The applicant contended that owing to the defendant ’ s negligence she had been unable to find out about any foetal abnormality and, thus, decide whether to terminate or continue the pregnancy. The applicant claimed compensation for non-pecuniary and pecuniary damage, compensation for lost wage s and a lump-sum maintenance award for her daughter. It appears that she had also unsuccessfully requested the court to order a forensic expertise of the original medical records.

12 . The lower court dismissed the claim. It concluded that there was no causal link between the actions of doctor L. and the birth of the applicant ’ s child. Even if doctor L. had been given an administrative fine for her failure to ensure that the applicant took the AF P test, this was insufficient to prove that doctor L. had been at fault. As it could not be proved that the doctor had falsified the applicant ’ s medical records, the court held that the applicant had failed to turn up for the AF P test and to inform the doctor of her eldest child ’ s condition .

13 . Upon an appeal by the applicant, on 17 April 2007 the Civil Chamber of the Supreme Court ( Augstākās tiesas Civillietu tiesu palāta ) examined the evidence with respect to falsification of the applicant ’ s medical records in detail and dismissed the applicant ’ s allegations. The court concluded that the applicant had been referred for the test and that the doctor could not be held at fault for the child ’ s genetic condition . It also repeated the lower court ’ s reasoning that no causal link could be established between the actions of the doctor and the child ’ s condition . It also noted that

“The result of the AF P test ... could neither confirm nor exclude genetic abnormality of a foetus, but would serve as an indication for further examination.

Therefore the [applicant ’ s] allegations that the results of the AF P test would have provide d her [with] an opportunity to chose whether to continue with or terminate the pregnancy could not in itself serve as a basis to uph o ld the claim.”

The court found no infringement of the applicant ’ s rights and the claim for damages was accordingly dismissed.

14 . In an appeal on points of law subsequently filed by the applicant , she argued that the appellate court had failed to correctly assess whether the actions of the defendant, i.e. the failure to ensure the AF P test, had infringed the applicant ’ s right to find out about any foetal abnormality . On 26 September 2007 (the full text of the judgment was made available on 22 October 2007) the Senate of the Supreme Court dismissed the applicant ’ s appeal on points of law , on the basis that it mainly concerned the assessment of evidence already examined by the lower courts.

15 . On 1 August 2007 the applicant asked the Senate of the Supreme Court to reopen the civil proceedings on the basis of newly dis covered evidence . I n particular, she based her application on the expert report of 7 July 2006 (see above) of which she had not previously been aware. On 5 December 2007 the Senate dismissed the applicant ’ s request.

B. Relevant domestic law

1. Medical T reatment L aw

16 . Section 23 provides that a patient has the right to refuse, in writing, to receive medical treatment. The patient ’ s doctor is responsible for providing information on the consequences of the refusal. If the patient has agreed to follow a medical treatment plan, s/he is obliged to obey the instructions of medical personnel.

17 . According to Section 41, a patient ’ s doctor should explain a medical treatment plan to the patient and inform him or her of the possible complications of the prescribed treatment and medicines.

2. Ordinance No . 324 concerning antenatal and prenatal care, issued by the Ministry of Welfare on 20 October 1995

18 . Pursuant to Paragraph II (3), as from 1 January 1996 medical institutions were ordered to ensure antenatal care in accordance with the provisions set out in Annex No. 1, the “Antenatal programme”. The Annex provided that from the sixteenth to eighteenth week of pregnancy a certified general practitioner or gynaecologist shall, inter alia , refer patients older than thirty-five years old for an AFP test.

COMPLAINTS

The applicant complains under Article 8 of the Convention that , owing to the negligence of a doctor , she was denied adequate and timely medical care in the form of an antenatal screening test which would have indicate d the risk of her foetus having a genetic disorder and which would have allow ed her to choose whether to continue the pregnancy. She also complains that the national courts, by wrongly interpreting the Medical Treatment Law , failed to establish an infringement of her right to respect for her private life in this re gard .

The applicant complains under Article 6 of the Convention of inequality of arms during the civil proceedings , in that the court s, without sufficient reasoning, dismissed her request that they order a forensic assessment of a piece of evidence submitted by the defendant.

She further complains under Article 6 that:

( i ) the decision by which the Senate of the Supreme Court dismissed her application to reopen the civil proceedings was not subject to appeal;

(ii ) she was deprived of access to court , in that she sustained considerable financial losses caused by the obligation to pay the defendant ’ s expenses incurred during the civil proceedings; and

(iii ) the investigation of her complaint regarding alleged falsification of her medical record s was excessively lengthy .

The applicant also complains under Article 8 of the Convention of a violation of the protection of her personal data.

QUESTIONS TO THE PARTIES

1. H as there been unjustified interference with, or failure to respect, the applicant ’ s private life within the meaning of Article 8 of the Convention by the fact that the applicant had allegedly failed to receive complete antenatal care as prescribed by the domestic law ?

2. Was the expert report prepared in the course of the criminal proceedings available to the civil court?

The Parties are r equested to submit other relevant materials from the civil proceedings and the investigation pursued by the Inspectorate for Quality Control of Medical Treatment concerning the alleged negligence of doctor L., especially the m aterials containing the latter ’ s submissions about the contested events.