Information Note on the Court’s case-law 208

June 2017

Erdinç Kurt and Others v. Turkey - 50772/11

Judgment 6.6.2017 [Section II]

Article 8

Positive obligations

Article 8-1

Respect for private life

Expert medical report relieving doctors of liability without examining whether they had provided due professional care: violation

Facts – The applicants are a couple and their daughter, who was left severely disabled f ollowing two operations. The first operation was designed to treat a very serious congenital heart condition; the second was aimed at remedying a complication arising out of the first operation, but resulted in severe neurological damage.

The parents brou ght an action for compensation in the civil courts and the Court of First Instance ordered an expert report. Citing extensively from the literature, the report detailed the incidence of complications and fatalities linked to this type of surgery, and concl uded in the light of the very substantial risks that there had been no negligence on the part of the doctors. Alleging that the report had failed to provide sufficient explanations, the applicants requested a second expert report, without success.

Law – Ar ticle 8: While the findings of an expert report were not binding on the courts, they were apt to have a decisive influence on the latter’s assessment since they concerned a technical field outside the courts’ sphere of expertise.

Only where it was establis hed that the doctors had provided due professional care in performing the operation, taking due account of the risks involved, could the damage caused be regarded as an unforeseeable consequence of treatment. Were it otherwise, surgeons would never be call ed to account for their actions, since any surgical intervention carried a degree of risk.

In the instant case the issue to be decided by the experts had consisted precisely in determining whether, irrespective of the risk posed by the operation, the doctors had contributed to the damage caused.

However, the expert report had not even touched on this issue. Basing its findings solely on data from the literature attesting to the existence of risks, it had not examined whether the doctors in question had acted in compliance with modern medical standards before, during and after the operation. As it was not based on any specific evidence, its conclusion that there had been no negligence was to be regarded more as affirmation than as proof.

The report had therefore given insufficient explanations regarding the issue on which it was supposed to provide technical insight. Faced with this shortcoming, the authorities had taken no action in response to the applicants’ request for a second expert report. Accordingly, the applicants had not obtained an adequate response from the courts in the light of the re quirements inherent in protection of the patient’s right to physical integrity.

Conclusion : violation (unanimously).

Article 41: EUR 7,500 jointly for non-pecuniary damage; claim for pecuniary damage dismissed.

(See also, from the standpoint of Article 2 o f the Convention, Eugenia Lazăr v. Romania , 32146/05, 16 February 2010, Information Note 127 ; and Altuğ and Others v. Turkey , 32086/07 , 30 June 2015)

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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