Information Note on the Court’s case-law 196

May 2016

Lopes de Sousa Fernandes v. Portugal (referral) - 56080/13

Judgment 15.12.2015 [Section IV]

Article 2

Positive obligations

Patient allegedly deprived of access to appropriate emergency care as a result of a lack of coordination between departments of a public hospital: case referred to the Grand Chamber

Following an operation for the extraction of nasal po lyps, the applicant’s husband developed bacterial meningitis, which was not detected until two days after he had been discharged from hospital. He was re-admitted to hospital several times, suffering from acute abdominal pain and diarrhoea. He died three m onths after the operation from the consequences of septicaemia caused by peritonitis and hollow viscera perforation.

The Inspector General for Health ordered the opening of a disciplinary procedure against one of the doctors who had treated the applicant’s husband. However, her complaint to the Medical Association was unsuccessful on the ground that no medical negligence had been found. She then filed a criminal complaint, but the court discontinued the proceedings. In other proceedings the Administrative C ourt dismissed her claim for damages on the grounds that it had not been proven that her husband had undergone treatment that was not suited to his clinical situation.

In a judgment of 15 December 2015 a Chamber of the Court held, by five votes to two, th at there had been a violation of Article 2 (right to life) of the Convention, under its substantive head, and unanimously, a violation of Article 2 under its procedural head.

The Chamber found in particular that the mere fact that the patient had undergone a surgical operation presenting a risk of infectious meningitis should have warranted a medical intervention in conformity with the medical protocol on post-operative supervision. It also took the view that the lack of coordination between the ear, nose a nd throat department and the emergencies unit inside the hospital revealed a deficiency in the public hospital service, depriving the patient of the possibility of accessing appropriate emergency care.

As regards the investigation, the Chamber further foun d that the Portuguese legal system had not functioned effectively, since, firstly, the length of three sets of domestic proceedings did not meet the requirement of promptness and, secondly, none of the proceedings conducted, nor any of the experts’ assessm ents presented, had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient two days after undergoing his operation. Lastly, before the operation the patient should have been clearly informed by the doctors of the risks involved.

On 2 May 2016 the case was referred to the Grand Chamber the Government’s request.

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

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