Published on 17 October 2022

FOURTH SECTION

Application no. 68324/17 Gayane DAVTYAN against Armenia lodged on 9 September 2017 communicated on 27 September 2022

SUBJECT MATTER OF THE CASE

The case concerns the death of the applicant’s mother, S.O., at the age of 81, resulting from alleged medical malpractice and the domestic proceedings in that respect.

On 8 March 2014 S.O. was taken to Armenia Medical Centre by ambulance with the diagnosis of an acute haemorrhagic disorder of cerebral circulation and was admitted for in-patient treatment in the intensive care unit. Computed tomography later revealed a haemorrhage in her brain.

On 15 March 2014 S.O. was transferred to the department of neurosurgery but two days later she was admitted back to the intensive care unit. It appears that during her stay in Armenia Medical Centre S.O. contracted pneumonia. The applicant alleges that this resulted from S.O. being left in the hospital corridor for several hours and being exposed to currents of cold wind while she was about to be transferred from the intensive care unit to the department of neurosurgery.

On 21 March 2014, upon the applicant’s initiative, S.O. was transferred to the intensive care unit of Mikaelyan hospital. She died there on 3 April 2014.

The applicant filed a crime report alleging that S.O. had died as a result of medical malpractice on the part of the medical personnel of Armenia Medical Centre.

On 30 May 2014 criminal proceedings were instituted. The applicant was recognised as S.O.’s legal heir. The criminal proceedings were terminated twice and resumed upon appeal. Subsequently, the applicant recused the investigator on the grounds that the latter had previously unjustifiably terminated the proceedings and lacked impartiality but the prosecutor rejected her application.

The investigation eventually concluded that S.O.’s death had not been caused by medical malpractice. On 24 August 2015 the criminal proceedings were terminated for the third time and the applicant unsuccessfully appealed against the relevant decision to the prosecutor and the courts.

On 22 March 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 S.O.’s right to life, ensured by Article 2 of the Convention, been violated in the present case? In particular:

1. In the light of the allegation that S.O. contracted pneumonia as a result of exposure to currents of cold wind in the hospital corridor, can it be said in the present case that the State fulfilled its duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients’ lives (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)?

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

If not, did any deficiencies operate to S.O.’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?