THIRD SECTION

Application no. 8759/05 by Julia Kinga CSOMA against Romania lodged on 24 February 2005

STATEMENT OF FACTS

THE FACTS

The applicant, Ms Julia Kinga Csoma , is a Romanian national who was born in 1972 and lives in Covasna . She is represented before the Court by Mr . D. G . Laczko , a lawyer practising in Trgu Secuiesc .

A. The circumstances of the case

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

1. Background information

The applicant fell pregnant in January 2002. The development of her pregnancy was monitored by Dr P.C., a gynaecologist.

While she was in the sixteenth or seventeenth week of pregnancy, the foetus was diagnosed with hydrocephalus.

Following a consultation with her doctor, it was decided that the pregnancy should be interrupted.

On 13 May 2002 she was admitted to the Covasna Town Hospital , where Dr P.C. worked. On the first day of admission she was put on a drip and medication was infused in order to induce abortion, but to no avail. The next day, concentrated glucose was injected into her stomach with the same purpose of inducing abortion. After the injection, the foetus stopped moving. On 15 May 2002, around midnight, she began to have a fever (39 degrees) and shivers, which lasted until the morning. She was not seen by a doctor during this time. She was only given painkillers.

In the morning, while she was still in bed in the ward and without being taken to the surgery room, she expelled the foetus. She then started bleeding profusely. Despite the fact that two curettages were performed on her, the bleeding would not stop and she was diagnosed with disseminated intravascular coagulation (DIC) [1] . The doctor then decided to transfer her urgently to the County Hospital , located in Sfantu Gheorghe, some thirty kilometres away. Although she was in a critical condition, during the transfer she was assisted only by a medical assistant.

When she arrived at the County Hospital , the doctors there had to proceed with a total hysterectomy and bilateral adnexectomy in order to save her life .

2. Conclusions of the College of Doctors

After consulting several specialists, the applicant formed the opinion that Dr P.C. had committed serious medical errors in treating her.

She therefore lodged a complaint with the Public Health Directorate of Covasna County. The County Counsel of the College of Doctors delegated the assessment of the matter to a doctor.

The following conclusions, presented in a letter to the Public Health Directorate of 18 September 2002, were reached:

( i ) the termination of pregnancy had been correctly indicated;

(ii) as regards the injection of hyperbaric glucose solution, it was found that it could be done in two ways: vaginal or abdominal. The latter procedure ensured better hygiene conditions, but it required a very precise localisation of the placenta by ultrasound scans; these scans had not been found in the applicant ’ s medical records. It was also recommended that the injection of the substance be monitored by ultrasound. This method required the written consent of the patient, after prior notification of the possible risks and complications. The medical records did not include this signature or information as to the clinical investigation of any abnormalities by the ultrasound laboratory;

(iii) DIC was not a direct consequence of an abdominal injection, but it represented a rare, very serious complication arising from this method; and

(iv) taking into account that the diagnosis of DIC had been correctly detected in time to allow the applicant to be transferred to the county hospital, with the result that her life was saved, no medical negligence could be identified.

It was noted that there were some procedural failures in the handling of the case: the patient ’ s signature was missing on the consent form; an ultrasound description of the location of the placenta was missing; and a summary of lab test results was also missing.

Taking into account the Town Hospital ’ s facilities and human resources, it was recommended that potentially risky cases should be treated in medical establishments which possessed the necessary facilities to deal with complications.

3. Criminal complaint against Dr P.C.

On an unspecified date in 2002, the applicant lodged a criminal complaint against Dr P.C. containing two charges: grievous unintentional bodily harm and negligence in the conduct of a profession. In a statement given on 19 November 2002, she indicated that she had joined a civil claim to her complaint.

On 25 November 2002, the investigating officer ordered a medical expert report to be prepared by specialist medical experts from the Forensics Department of Covasna County and from the County Hospital .

On 4 December 2002, a medical expert report was issued by the Forensics Department of the Covasna Public Health Directorate. This report concluded that no medical negligence had been committed, noting that the method chosen for inducing the abortion could be performed in any gynaecological hospital unit. Even if the medical records had not included the results of a lab test, this did not exclude the possibility that a test had been done but the results were not written down. It was also underlined that the diagnosis of DIC had been quickly determined and that any delay in establishing this diagnosis might have rendered saving the applicant ’ s life almost impossible.

On 15 January 2003, the applicant lodged her objections to the medical expert report with the investigating authorities. She noted that she had not been consulted with regard to the objectives of the report and that in any event it was incomplete, even when compared to the questions formulated by the police. She wanted the medical expert report to answer the following questions:

( i ) whether there were other medical methods available for interrupting the pregnancy which presented less risks and which did not entail endangering her life;

(ii) whether the chosen method presented risks and, if so, what the treating physician ’ s obligations were before applying this method and whether the doctor had complied with those obligations;

(iii) whether the medical procedure was urgent or whether there had been time to direct her to another, better equipped, hospital unit;

(iv) whether the use of ultrasound might have influenced the outcome of the procedure; and

(v) whether subjecting her to a total hysterectomy and bilateral adnexectomy could have been avoided if she had been hospitalised in a medical establishment which possessed the necessary facilities to handle the a diagnosis of DIC immediately after it was detected .

On 27 March 2003, the Targu Mures Forensics Institute issued an opinion ( aviz ) on the case. Its conclusions were as follows:

( i ) the case file did not include medical information which could confirm the diagnosis of hydrocephalus with certainty;

(ii) in the case of medical procedures for interrupting pregnancy later than the fourteenth week, the hospital ’ s standard procedure required that a medical form be filled in and signed by two specialist doctors and by the hospital director. This document was not found in the medical records;

(iii) providing information to a patient in advance of treatment was compulsory. For certain procedures that entailed risk, the written consent of the patient was required. This document was not found in the medical records;

(iv) prior to the procedure being carried out, lab tests had to be carried out. The results of such tests were not found in the medical records;

(v) the haemorrhaging following the procedure could also have been caused by the rupturing of one or more blood vessels during the curettage, particularly taking into account the fact that the post-operative report had mentioned a h a emorrhagic infiltration . The medical records did not include an ultrasound description of the localisation of the placenta; and

(vi) the diagnosis of DIC was not confirmed by the lab tests, as there were no such results included among the medical documents submitted to the institute.

On 16 April 2003, the prosecutor attached to the Covasna County Court, noting that based on the two medical reports it could not be precisely determined whether there had been any medical negligence which could trigger criminal liability on the part of Dr P.C., asked the Superior Forensics Commission within the National Forensics Institute to review all the medical reports and to issue an opinion from a scientific point of view on the medical acts performed in the case.

The Superior Forensics Commission issued its report on 26 January 2004, confirming the conclusions of the report of 4 December 2002 excluding any medical negligence. It nevertheless observed that the doctor had failed to discuss the proposed procedure and the possible complications with the applicant and her family and to obtain her signature expressing her written consent to the proposed procedure.

On 17 February 2003, the prosecutor decided not to bring criminal charges against the practitioner concerned. This decision was confirmed by the supervising prosecutor and by a final decision of the Covasna County Court of 29 September 2004.

B . Relevant domestic law and practice

The judgment delivered in the case of Eugenia Laz ă r v. Romania (no. 32146/05, §§ 41-54, 16 February 2010) describes in detail the relevant domestic case-law and practice concerning the delivery of medico-legal expert reports and the authorities competent for their issuance, as well as the relevant domestic case-law and practice concerning the civil liability of medical staff.

COMPLAINTS

Relying on Articles 2, 6 and 13 of the Convention, the applicant complains of the fact that because of alleged acts of medical negligence her life was endangered and she became permanently unable to bear children. She considers that the investigation of the case was superficial and that the forensics authorities lacked impartiality in issuing the medical expert reports, leading to a situation in which she has not obtained recognition of the serious bodily harm inflicted on her and a guilty person has been protected.

QUESTION TO THE PARTIES

Did the respondent State comply with its positive obligations under Article 8 of the Convention in respect of the applicant ’ s right to physical integrity in the instant case (see Trocellier v. France ( dec .), no. 75725/01 , § 4 , ECHR 2006 ‑ XIV ) ?

In particular:

(a) did the applicant have access to information enabling her to assess the risks of the method chosen for the interruption of the pregnancy and the resources available for dealing with those risks within the hospital unit which performed the procedure?

(b) did domestic law, as applied in the instant case, provide the applicant with an effective remedy enabling the establishment of the possible liability of the practitioner or the medical establishment concerned for the physical injuries alleged and, if necessary, obtaining adequate civil redress? In answering this question, the Government are invited to take into account the conclusions reached by the Court in the case of Eugenia Lazăr v. Romania ( no. 32146/05 , §§ 76-91, 16 February 2010 ).

[1] A condition resulting from overstimulation of the blood-clotting mechanisms in response to disease or injury, such as severe infection, malignancy, acute leukaemia, burns, severe trauma, or severe haemorrhage during childbirth. The overstimulation results in generali s ed blood coagulation and excessive consumption of coagulation factors. The resulting deficiency of these factors may lead to spontaneous bleeding (Concise Medical Dictionary, Eighth edition ) .