Information Note on the Court’s case-law 11

October 1999

Erikson v. Italy (dec.) - 37900/97

Decision 26.10.1999 [Section I]

Article 2

Article 2-1

Life

Death allegedly resulting from medical negligence - adequacy of investigation: inadmissible

In 1989 the applicant’s mother, who was suffering severe abdominal pain, was sent by her doctor, without any prior examination, to the local public hospital to unde rgo an X-ray examination. She was asked at the hospital to drink barium for the purpose of the examination. Although she collapsed in the course of the examination, she was sent back home straight after it was completed. The next day she had to be rushed b ack to hospital, where she died soon after arriving. In 1992, doubts as to the exact causes of her death arose from a conversation the applicant had with a doctor, and hence he decided to seek medical opinions. It emerged that his mother had died of an int estinal occlusion which the ingestion of barium had seriously exacerbated. The applicant consequently instituted criminal proceedings against his mother’s doctor for having failed to examine her before sending her to hospital and requested that the radiolo gist who had directed the X-ray examination be identified and prosecuted. After a first phase of the investigation, the public prosecutor came to the conclusion that the investigation had to be discontinued for lack of evidence. The judge for preliminary i nvestigations discontinued it accordingly, but reopened it upon the applicant’s request with a view to identifying the radiologist involved. Following a thorough investigation by the police, the public prosecutor requested once more that the investigation be discontinued on the ground that the radiologist had not been identified with sufficient certainty. The judge for preliminary investigations finally discontinued the investigation.

Inadmissible under Article 2: The positive obligations for a State to pro tect life include the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obligation to establish an effective system of judicial investigation into medical accidents and any liability on the part of medic al practitioners. In the instant case, the hospital authorities did not investigate the death of the applicant’s mother, although the circumstances surrounding it were unclear. On the other hand, the judicial authorities did carry out a thorough investigat ion into the events. As a result of the time which had elapsed before the investigation started, the evidence gathered could not lead to a committal for trial and the applicant’s scope of criminal action was quite limited. In this respect, there is no righ t to secure a conviction in criminal proceedings, and neither the applicant nor the authorities could be held responsible for the lateness of the investigation. In addition, there were no elements to show that the prosecuting authorities assessed the evide nce before them in an arbitrary manner. It was also open to the applicant to bring an action for negligence against the hospital, the criminal investigation carried out being limited to the improbable identification of the medical practitioners involved. F urther evidence could have been sought and the scope of such an action would have been wider than the criminal action he brought. In conclusion, the investigation into the circumstances of the case did not appear deficient and there was a mechanism whereby the criminal or civil responsibility of the medical practitioners involved could be examined: manifestly ill-founded.

© Council 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