Published on 19 September 2022

FIFTH SECTION

Application no. 12431/22 Vladimír VESELÝ against the Czech Republic lodged on 17 March 2022 communicated on 2 September 2022

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s request for damages lodged against a semi-public (regional) hospital on account of medical malpractice (dated 2013) which allegedly left him with pain and lasting health consequences. Relying on two expert opinions, medical reports and witness statements, the first-instance court partly dismissed the action, considering that while two aspects of the treatment had not been lege artis , a causal link between them and the applicant’s health consequences had not been proven. As regards the pain suffered by the applicant as a result of an unnecessary abdominal incision, which had not been lege artis , the court granted the action and awarded the applicant approx. 1,580 EUR. The amount was based on the assessment carried out by an expert pursuant to a decree of the Ministry of Health (adopted in 2001 and repealed in 2014 when the new Civil Code entered into force) but the court decided to double the amount proposed by the expert due to a complicated healing of the incision and a further risk of complications.

Following the applicant’s and the hospital’s appeals, the second-instance court lowered the amount of compensation to 790 EUR initially proposed by the expert, considering that a higher amount could only be awarded in exceptional cases of extreme pain, which had neither been claimed by the applicant nor proven by the expert opinions.

The Supreme Court dismissed a subsequent appeal on points of law by the applicant and ordered the latter to pay the fee of the lawyer representing the hospital, amounting to approx. 540 EUR.

The applicant’s constitutional appeal relying on the rights to health and to a fair trial was dismissed as manifestly ill-founded by the Constitutional Court’s decision no. III. ÚS 1306/21 of 14 September 2021 (served on 17 September 2021).

Relying on Article 8 of the Convention, the applicant complained of medical malpractice leaving him with pain and long-lasting consequences.

QUESTIONS TO THE PARTIES

Can the applicant continue to claim to be victim of a violation of his rights under Article 8 of the Convention? In particular, did he receive adequate reparation for the medical malpractice, given the low amount awarded by the domestic courts (see Otgon v. the Republic of Moldova , no. 22743/07, §§ 16 ‑ 20, 25 October 2016, and, mutatis mutandis , Codarcea v. Romania , no. 31675/04, §§ 94-109, 2 June 2009) ? Did the Supreme Court’s decision on legal fees take into account the specific character of the proceedings in which the applicant sought to protect his rights under Article 8 of the Convention?