Information Note on the Court’s case-law 199

August-September 2016

AydoÄŸdu v. Turkey - 40448/06

Judgment 30.8.2016 [Section II]

Article 46

Article 46-2

Execution of judgment

Measures of a general character

Respondent State required to identify causes of structural malfunctioning of health service, find appropriate solutions and change the rules governing forensic medical expert reports

Article 2

Positive obligations

Death of newborn baby denied access to adequate emergency care in a public hospital as a result of negligence and structural failings: violation

Article 2-1

Effective investigation

Inadequacy of expert medical reports into death of newborn baby in public hospital: violation

Facts – The applicants are a married couple. On 6 March 2005 at around 4.30 p.m. the first applicant was taken to Atatürk Hospital, where she promptly gave birth by Caesarean section to a premature baby girl. The baby was suffering from respiratory distress syndrome requiring emergency treatment and special technical facilities which were not available at the hospital. Consequently, at around 6 p.m. the baby was tr ansferred by ambulance to Behçet Uz Hospital on the doctors’ orders.

The baby was admitted to the neonatal department as there was no space available in the intensive-care unit. On arriving at the hospital, the second applicant was informed that the neona tal department was unable to provide the necessary treatment but that if he could find another hospital with the requisite facilities, the baby could be transferred there.

On the morning of 8 March the premature child was transferred to the intensive-care unit and placed on mechanical ventilation. At around 11 p.m. she was found dead by a nurse.

Law

Article 2 ( substantive aspect ): The staff at Atatürk Hospital had displayed negligence, marked by a lack of coordination. The real problem, moreover, resulted from the ill-considered and poorly organised transfers of premature babies to Behçet Uz Hospital, and the position of other un iversity hospitals in the region, which did not accept transfers of this kind. Atatürk Hospital had neither an appropriate unit for premature babies nor the technical facilities for treating them. In 2004, 354 of the 387 premature babies born at the hospit al had had to be transferred to other institutions in questionable conditions.

This chronic state of affairs, which was clearly a matter of common knowledge at the relevant time, showed that the authorities responsible for health care could not have failed to realise that there was a real risk to the lives of multiple patients, and that they had not taken the steps within their powers that could reasonably have been expected to avert that risk, in particular because of the lack of a regulatory framework lay ing down rules for hospitals to ensure protection of the lives of premature babies, including the applicants’ daughter.

Besides the negligence attributable to the medical staff, a causal link had therefore also been established between the death in the pr esent case and the above-mentioned structural problems.

Accordingly, the applicants’ daughter had to be regarded as having been the victim of negligence and structural deficiencies, the combined effect of which had been to prevent her from receiving appro priate emergency treatment, thus amounting to a life-endangering denial of medical care.

Conclusion : violation (unanimously).

Article 2 ( procedural aspect ): The arrangements laid down in Law no. 4483 on the prosecution of civil servants and other public of ficials had been systematically criticised and had given rise to frequent findings of violations by the Court on account of the lack of independence of the investigative bodies, the inability of complainants to participate effectively in investigations and the inadequate judicial scrutiny of the decisions of the bodies concerned. There were no particular circumstances justifying a departure from those conclusions in the present case.

In addition, in the forensic expert reports considered by the domestic cou rts the experts had never answered the only fundamental questions from which they could have determined whether, leaving aside the coordination problems and the structural deficiencies, the death of the applicants’ daughter had been due to medical negligen ce or whether it had stemmed from the refusal to provide certain specific forms of treatment for premature babies with respiratory distress syndrome. Given that the court-ordered expert reports had been drawn up without the involvement of a specialist in n eonatology, the branch of medicine at the heart of this case, they were at odds with the guidelines established in the domestic case-law concerning the need for appropriate scientific qualifications in this area. As a result of these deficient expert repor ts, no authority had been capable of providing a coherent and scientifically grounded response to the problems arising in the present case and giving an informed assessment of any liability on the part of the doctors.

This state of affairs was incompatible with the procedural obligation under Article 2, which in the present case had specifically required the national authorities to take steps to secure the evidence likely to provide a complete and accurate record of the events and an objective analysis of t he clinical findings as to the cause of the applicants’ daughter’s death.

The criminal proceedings in issue had lacked the requisite effectiveness to be able to establish and punish any breach of the right to the protection of the baby’s life in the presen t case as a result of the medical care complained of.

Conclusion : violation (six votes to one).

Article 41: EUR 65,000 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.

Article 46: The national authorities, in cooperation with the Committee of Ministers of the Council of Europe, were in the best position to identify, at national and/or regional level, the various causes of the structural defects in the health system and to provid e general solutions to alleviate them, including improved regulation of transfer procedures and better quality health care in the field of prenatal and neonatal medicine in order to prevent similar violations in the future.

Independent administrative and d isciplinary investigations, to be launched promptly by the authorities without requiring a formal complaint and to be conducted under the supervision of the highest competent body of the public service in question, could play a central role in the search f or appropriate solutions for establishing the circumstances in which treatment had or had not been provided and any failings that might have influenced the course of events.

Accordingly, the procedure for forensic medical examinations had to include suffi cient safeguards, requiring for example that the bodies and/or specialists that could be called upon to carry out such examinations should have qualifications and skills corresponding fully to the particularities of each case under review, and the credibil ity and effectiveness of this procedure should be guaranteed, in particular by making it compulsory for forensic medical experts to give proper reasons in support of their scientific opinions.

The perspective set out in paragraph 138 of the Guidelines on the role of court-appointed experts in judicial proceedings of Council of Europe member States , issued on 12 December 2014 by the European Commission for the Efficiency of Justice ( CEPEJ ), which urged member States to “either introduce legal regulations concerning the rights and responsibilities of experts in judicial process or control, or review wh ether the existing guidelines in the matter meet the prescribed minimum standards of the rules of conduct for experts”, would offer sufficient guidance to the respondent State in choosing the means to put in place.

(See also Mehmet Şenturk and Bekir Şentur k v. Turkey , 13423/09, 9 April 2014, Information Note 162 , and Asiye Genç v. Turkey , 24109/07, 27 January 2015, Information Note 181 )

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

Click here for the Case-Law Information Notes