Published on 17 October 2022

FOURTH SECTION

Application no. 41552/17 Armen CHATYAN against Armenia lodged on 2 June 2017 communicated on 27 September 2022

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s mother, M.V., resulting from alleged medical malpractice and the domestic proceedings in that respect.

On 25 February 2014 M.V. underwent surgery for the removal of her uterus in Shengavit Medical Centre. Two days later she was discharged. It appears that M.V. had fever before being discharged but the records are inconsistent. Following M.V.’s discharge, the applicant allegedly called the surgeon and his assistant and informed them that M.V.’s had had fever, nausea, abdominal pain and had been vomiting but was essentially reassured that there were no reasons for concern.

M.V.’s condition deteriorated and, on Sunday, 2 March 2014, the applicant took her back to the same hospital. Allegedly, upon admission M.V. did not receive proper emergency treatment because an insufficient number of medical personnel were on duty on that day. On 3 March 2014 M.V.’s condition deteriorated further and she was admitted to the intensive care unit. The same day a decision was made to perform an urgent surgery for acute abdomen and M.V. was operated. M.V.’s condition became critical after the surgery. She died on 4 March 2014.

On the same date the applicant submitted an application to the investigator informing about the M.V.’s death and requesting an autopsy.

On 14 March 2014 criminal proceedings were instituted into alleged medical malpractice. The applicant was recognised as M.V.’s legal heir.

Four forensic medical examinations were carried out in the scope of the criminal proceedings which, inter alia , came to the following conclusions. The first forensic medical examination concluded that M.V.’s death resulted from the overall intoxication of the body caused, inter alia, by the perforation of the sigmoid colon. The second forensic examination concluded that the M.V.’s surgeries, diagnosis and treatment were performed correctly and did not find anything indicating medical malpractice. At the same time, it found impossible to establish the exact cause of the perforation of the sigmoid colon because the tissues surgically removed from M.V.’s body had not been kept. The third forensic examination came to a similar conclusion that M.V.’s diagnosis and treatment, including the surgeries, were done correctly and did not find any medical malpractice. The fourth forensic examination concluded that there were no regulations making a doctor responsible for a patient following discharge and that surgically removed tissues must be kept for histopathological examination. The applicant alleges that the tissues surgically removed from M.V.’s body could have been intentionally disposed of in order to cover up the real cause of the perforation of the sigmoid colon and that no thorough investigation has been conducted in that connection.

The investigation was eventually terminated for absence of a crime. The applicant unsuccessfully appealed against the decision to the prosecutor and before the courts.

On 8 February 2017 the applicant’s appeal on points of law to the Court of Cassation was declared inadmissible for lack of merit.

QUESTIONS TO THE PARTIES

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

1. Having regard to the duty to put 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 patients’ medical condition at the time of discharge, post-discharge medical supervision and the availability of an adequate number of qualified medical personnel at weekends?

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

If not, did any deficiencies operate to M.V.’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?