Information Note on the Court’s case-law 265

August 2022

Tusă v. Romania - 21854/18

Judgment 30.8.2022 [Section IV]

Article 8

Positive obligations

All available procedural avenues ineffective for applicant claiming medical negligence after breast removal surgery performed on basis of oncologist’s mistaken cancer diagnosis: violation

Facts – The applicant had breast removal surgery on the basis of an oncologist’s cancer diagnosis which later turned out to be mistaken.

Believing herself to be a victim of medical negligence, the applicant used every procedural avenue available under Romanian law to hold the oncologist and surgeon individually liable and take action against the legal entities that had employed them. She pressed criminal charges, brought a claim for medical negligence under Law no. 95/2006 as well as a claim under the general law of tort, which was still pending at the time of the Court’s judgment, and also lodged a disciplinary complaint.

Law – Article 8:

1. Procedural avenues available to the applicant. The applicant had been able to raise before the domestic authorities her allegations concerning the medical negligence of which she believed herself a victim.

A defining feature of the case had been the applicant’s choice to use all the procedural avenues available to her under domestic law; she intended to pursue the still‑pending domestic tort claim although she had doubts about its outcome. Against that backdrop the Court reaffirmed that bringing an action for money damages was the preferable approach in medical negligence cases.

2. The criminal proceedings. There were contradictions between the reports that had been delivered at different times by the competent expert body. At first both doctors had been found to have been medically negligent whereas later the opposite conclusion had been reached.

The public prosecution service had tried to clarify the circumstances of the case by referring to the decisions reached by the medical review board in the proceedings under Law no. 95/2006 and had concluded that only the oncologist had been medically negligent.

However, the public prosecutors’ conclusions had been of limited effect because of the time bar to prosecution of the oncologist. Of note in this connection was the slow pace at which the reports of the expert body had been produced, in particular the initial report which had been issued roughly three years after the start of the criminal proceedings. Likewise the domestic courts’ consideration of the case had been limited in that they had not been able to address the substantive issues raised. In matters of medical negligence it fell to the Government to provide the Court with a convincing and plausible justification for any delays and for the length of the domestic proceedings. In this case the Government had provided no such justification.

3. The proceedings against the doctors for medical negligence under the statute and the general law of tort. Romanian law afforded three possible courses of action to a person seeking to establish liability for medical negligence: a complaint to the medical review board under Law no. 95/2006, after which the board’s decision could be challenged in the courts; direct recourse to the courts under Law no. 95/2006; and direct recourse to the courts under the Romanian Civil Code’s provisions governing liability in tort. However, an authority hearing a claim founded on the provisions of Law no. 95/2006 would be competent only to enter a finding of medical negligence; compensation for harm suffered as a result of medical negligence could not be claimed. It was only on the footing of the Civil Code provisions that the domestic courts could entertain such a claim. While it had the merit of giving would-be litigants a choice of avenues, this machinery seemed cumbersome and thus inevitably time-consuming. A problem of coordination might also arise if a person chose to pursue each and every procedural avenue afforded by law.

In the applicant’s case the complaint lodged with the medical review board had spawned two separate sets of proceedings as a result of the challenges filed by both doctors. The tort proceedings, which were still pending, had lasted more than nine years and the proceedings under Law no. 95/2006 seven years. It was possible that by choosing to avail herself of all the procedural avenues open to her under domestic law the applicant had in a way contributed to the delay, in so far as stays had been ordered while the criminal case was pending. But there were no other factors capable of justifying the slow pace of the two sets of proceedings.

More importantly, in the proceedings under Law no. 95/2006, different views had been taken by the medical review board, which had initially entered findings of medical negligence but had not provided reasons, and the courts, which had set aside the board’s decisions. Nor had the courts offered a convincing explanation for the inconsistencies between the medical reports and opinions obtained in the applicant’s case. This was plain to see in the proceedings against the oncologist, particularly in relation to the issue of whether she had properly reached the cancer diagnosis, given the differing opinions obtained in that regard. The Court of Appeal had at one point found the opinions to be contradictory before later regarding the contradictions as “supposed”. Meanwhile, in the disciplinary proceedings, the disciplinary appeals board of the Romanian Medical Council had concluded that a biopsy would have been needed to establish a diagnosis in the applicant’s case. And the courts in the proceedings under Law no. 95/2006 had reached different conclusions from those arrived at in the criminal and disciplinary proceedings as to whether the oncologist could be held liable. The authorities had made no effort to explain or justify this difference in outcomes. The proceedings under Law no. 95/2006 had not even succeeded in clarifying whether there had been medical negligence in the case.

Lastly, an action to establish medical negligence under Law no. 95/2006 and an action under the general law of tort had aspects in common, in particular regarding the examination to be undertaken of the four elements required to make out a cause of action against the doctor: unlawful conduct, damage, a causal nexus between the conduct and the damage, and fault on the part of the tortfeasor. The applicant had made a choice – one which in principle could not be criticised – to avail herself of every procedural avenue open to her. However, in both sets of proceedings under Law no. 95/2006, the Courts of Appeal had concluded that the doctors had not been medically negligent, so that no unlawful conduct could be imputed to them. Yet unlawful conduct was one of the four elements required to make out a cause of action in tort.

This lent some weight to the applicant’s submission that the outcome of the proceedings under Law no. 95/2006 had left the pending tort claim with little prospect of success. A civil action was the preferable avenue for a medical negligence case, but the Government had not contended that the tort claim might afford the opportunity for a fresh substantive inquiry into the question of the two defendant doctors’ civil liability. The Court was of the opinion that a finding in the applicant’s favour in the pending civil proceedings would not affect its conclusions since the question it had to answer was whether, in the 14 years since the applicant had consulted the doctor and had the surgery, all the procedural avenues available had afforded her an appropriate response to her case.

The slow-moving and cumbersome legal machinery of the two procedures had not yielded clarification of the factual circumstances relevant to the diagnosis or to the appropriateness of the ensuing surgery.

4. The disciplinary proceedings. The disciplinary appeals board of the Romanian Medical Council had considered the issue of whether the oncologist had committed a disciplinary offence, and it had taken disciplinary action against him. However, the proceedings had spanned a lengthy period of 10 years. And the disciplinary board had had to discontinue the proceedings against the surgeon, who had died in the meantime.

Furthermore, the disciplinary procedure was concerned only with the task of determining whether a disciplinary offence had occurred; where a finding of such an offence resulted and disciplinary action was taken against the doctor, the procedure did not make provision for the victim to obtain compensation for the harm suffered. Such compensation could be claimed only through a separate civil action.

The disciplinary proceedings had succeeded in clarifying whether a disciplinary offence had been committed by one of the defendant doctors, but given their nature and how long they had taken, the limits to those proceedings had impacted upon their effectiveness.

5. Conclusion. The legal framework in place, with its range of procedural avenues to choose from, might appear to be of benefit to potential litigants. However, the various proceedings instituted had yielded differing results. For instance, both the criminal and the disciplinary cases (their respective outcomes notwithstanding) had led to determinations that the oncologist had performed her professional duties inadequately, whereas the proceedings under Special Law no. 95/2006 had excluded such a finding against her.

Moreover, the machinery of the law had proved slow-moving and cumbersome. The courts had ordered stays pending the outcome of other proceedings, a possible reason why time had run out to prosecute the oncologist and the disciplinary case had had to be discontinued following the death of the defendant surgeon. It was true that the applicant had elected to pursue all the procedural avenues available to her under the legal framework in place, but the Court could not fault her for that. It was understandable that she had wished to obtain clarification of the facts concerning her situation and compensation for the harm she believed she had suffered. However, the tort case – the only proceedings in which such compensation might in theory have been forthcoming – had remained pending nine years after she had filed it with the courts and 14 years after she had consulted the doctor and had the surgery. In the applicant’s case the existing domestic legal machinery had not afforded the effectiveness which the Court’s case-law required.

Conclusion: violation (unanimously).

Article 41: 7,500 euros awarded in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Eugenia Lazăr v. Romania , no. 32146/05, 16 February 2010, Legal summary ; Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, 19 December 2017, Legal summary )

© 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