Published on 17 October 2022

FOURTH SECTION

Application no. 5510/17 Georgi MISAKYAN against Armenia lodged on 22 December 2016 communicated on 27 September 2022

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s daughter, L.M., at the age of 2, resulting from medical malpractice and the domestic proceedings in that respect.

On 31 December 2012 L.M. was taken by an ambulance to Arabkir Medical Centre, a children’s hospital, where she was diagnosed by L.V., the paediatrician on duty, with a respiratory infection and admitted for in-patient treatment.

On 1 January 2013 Z.A., another paediatrician, took over the duty shift.

On 2 January 2013 L.M.’s condition sharply deteriorated and she was referred to the intensive care unit by I.M., the paediatrician on duty on that day. L.M. died on the same date.

On 9 July 2013 criminal proceedings were instituted into possible medical malpractice․ The applicant was recognised as L.M.’s legal hair. It was established during the investigation that L.M.’s death had been caused by pneumonia which L.V. and Z.A. had failed to diagnose. They were eventually convicted of medical negligence and sentenced to 2 years’ and 2 and a half years’ imprisonment respectively but were exempted from serving their imprisonment term by application of an Amnesty Act. At the same time, the trial court did not find it necessary to impose a ban on their medical practice. The judgment was upheld by the Criminal Court of Appeal. During the appeal proceedings, Z.A. argued, inter alia , that she had had a heavy workload while on duty but the Criminal Court of Appeal did not accept that argument as justification for her failure to perform her duties properly.

It appears from a certificate issued by the director of Arabkir Medical Centre that on 31 December 2012 two paediatricians were in charge of 102 patients receiving in-patient treatment and remaining under their supervision. During the duty shift of 31 December 2012, 7 new patients were admitted for in-patient treatment (5 of whom were treated by L.V.) while 28 more patients (14 of whom were received by L.V.) underwent out-patient examination at the reception.

The applicant appealed on points of law. On 24 June 2016 the Court of Cassation partially granted the applicant’s appeal in so far as the lower courts’ decision not to impose a ban on medical practice was concerned and remitted the case to the trial court for a fresh examination on that issue.

No information has been provided to the Court concerning further developments.

QUESTIONS TO THE PARTIES

Has L.M.’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular:

1. Having regard to the State’s duty to have in place an effective regulatory framework (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 185-96, 19 December 2017; and Botoyan v. Armenia , no. 5766/17, §§ 92, and 99-105, 8 February 2022), were there regulations in place at the relevant time concerning the adequate number of qualified medical personnel to be made available on public holidays?

If so, did the State fulfil its duty of implementation, including supervision and enforcement, of those regulations?

If not, did any deficiencies operate to L.M.’s detriment in the present case?

2. Having regard to the procedural obligation to set up an effective and independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, could be determined and those responsible made accountable (see Lopes de Sousa Fernandes, cited above, §§ 214-21; and Botoyan v. Armenia , cited above, § 94, and 106-31), were the proceedings in the present case in breach of Article 2 of the Convention? In this context, did the exemption of the term of imprisonment under the Amnesty Act undermine the effectiveness of the judicial proceedings?