CASE OF SARA LIND EGGERTSDÓTTIR v. ICELAND
Violation of Art. 6-1;Damage - financial award;Costs and expenses partial award - Convention proceedings
David Thór Björgvinsson
5. The applicant, Sara Lind Eggertsdóttir, is an Icelandic national who lives in Reykjavík. 6. On 5 March 1998 the applicant was born at the National and University Hospital (hereinafter referred to as the NUH) in Reykjavík, which was a State hospital. Soon after her birth it became clear that she was severely handicapped both physically and mentally. Her disability is assessed at 100%. 7. In July 1998 the applicant's parents complained to the Medical Director of Iceland, who in October 1999 concluded that the child had not been given improper treatment. 8. The applicant's parents, who were represented by a lawyer, then brought proceedings on her behalf against the State of Iceland in the Reykjavik District Court. Their arguments can be described as twofold. Firstly, a mistake had been committed in the delivery room in that the doctors had reacted too late to hypoxia despite its having been diagnosed directly on the mother's arrival there. Secondly, paediatricians had made a mistake when attending to the child immediately after birth. The parents alleged that a catheter inserted into the child's umbilical artery had been abnormally bent to a U-shape and left that way for approximately 32 hours. This had been capable of causing the damage that had occurred to the child's health. Instead the doctors should have partially withdrawn the catheter until it straightened out or, if that was not possible, inserted it into a limb. 9. The respondent requested the District Court to dismiss the applicant's claim, maintaining that the damage she had suffered to her health was a result of hypoxia during pregnancy, before the mother's arrival at the labour ward of the NUH, and that no additional damage could be linked to any possible mistakes on the part of hospital staff. The applicant was already in a serious condition when delivery was performed by caesarean section, by which time hypoxia had already caused arterial thrombosis. The position of the catheter had therefore not caused the damage to the applicant's health. 10. The District Court, sitting with one professional judge and two lay judges, one of whom was a paediatrician and the other a gynaecologist and obstetrician, heard extensive evidence from all the hospital personnel involved and from experts. 11. By a judgment of 24 April 2002, the District Court rejected the first claim described above but upheld the second claim and found the State liable to pay compensation to the applicant. It awarded her 28,522,474 Icelandic Crowns (ISK) in compensation (ISK 20,684,948 for pecuniary damage and ISK 7,756,856 for non-pecuniary damage), plus interest, as well as certain sums for legal costs, to be held by her parents on her behalf. Its reasoning on the merits included the following passages: “By reference to the foregoing the court concludes that proof has not been adduced to show that the plaintiff's disability was solely due to her illness following thrombosis of the aorta and the renal arteries. On the other hand, there is a significant probability that her illness following the said thrombosis at least contributed to the serious brain damage she suffered, which caused her disability and non-financial loss. Whether the plaintiff had already suffered brain damage, and the extent to which her illness may have added to that damage, is impossible to ascertain. In view of the plaintiff's difficult situation as regards proof and of the rules of evidence that must be regarded as having been formed in this field of the law of compensation, the onus must be on the defendant to prove that the brain damage from which the plaintiff now suffers would have occurred even if the defendant's employees had not made the mistake of letting the catheter remain in a U-shape in her aorta for up to 32 hours. As the defendant must, in the light of the foregoing, be considered not to have succeeded in adducing such proof, the court accepts the plaintiff's view that the conditions that would render the defendant liable to pay compensation on account of her disability and non-financial loss are fulfilled. It is not possible on the basis of the available evidence and the above rule of evidence to endorse the defendant's view that only a small part of the disability can be traced to her illness caused by thrombosis of the aorta and the renal arteries. As it has not been demonstrated whether or to what extent the damage to the plaintiff's health was due to other causes, the defendant is deemed liable for her entire loss.” 12. The Solicitor General appealed against the above judgment to the Supreme Court. In support thereof, he filed two statements by certain named doctors of the University Hospital commenting on the District Court's judgment and criticising its conclusion. The statements had been addressed to the Hospital's Chief Medical Executive, who apparently had endorsed them and forwarded them to the Solicitor General. 13. The Supreme Court initially scheduled the oral hearing for 24 January 2003, but on 21 January 2003 informed the applicant's lawyer and the Solicitor General that it had adjourned the hearing pending an opinion it intended to request from the State Medico-Legal Board (SMLB). On this occasion the Supreme Court gave the parties an opportunity to indicate the questions they would like to be put to the SMLB. 14. In reply, by a letter of 24 January 2003, the applicant's lawyer protested, in particular, against the Supreme Court's decision to seek the SMLB's opinion without having first offered the parties an opportunity to express their views on the measure. It was noted that, pursuant to section 1 of the State Medico-Legal Board Act, many doctors associated with the NUH, where the disputed medical services had been provided, had a seat on the Board. Moreover, the Medical Director had already expressed his views on the matter and was therefore disqualified from any further involvement. The lawyer also protested against any consideration of the matter by the hospital's employees, and demanded their withdrawal. In the event that the Supreme Court were to decide, despite the applicant's protest, to proceed to ask the SMLB for an opinion, the applicant's lawyer specified 11 items for questions that he wished to be put to the SMLB. 15. The Supreme Court replied on 30 January 2003 that it found no reason not to ask for the SMLB's opinion but that it would consider the applicant's proposal regarding the questions. 16. On 31 January 2003 the Solicitor General indicated 13 questions which he thought should be put to the SMLB, but did not comment on the appropriateness of asking the SMLB for an opinion. 17. On 12 February 2003 the Supreme Court formally decided to obtain an opinion from the SMLB on 19 questions relating to the matter in dispute, giving the following reasons: “It was difficult to ascertain from the evidence and testimonies submitted what the cause of the [applicant's] injury was, added to which some points were not as clear as would have been desirable. It was therefore deemed proper, before the case were tried by the Supreme Court, to obtain the opinion of the State Medico-Legal Board under section 2(1) and (2) of the SMLB Act and to seek answers on certain points since, according to the said Act, it is the SMLB's role to provide the courts with opinions on medical matters.” In connection with the above the Supreme Court drew particular attention to the applicant's request of 24 January 2003 for the withdrawal of certain members. 18. The SMLB was composed of the Director of Health (Landlæknir) of Iceland, as chair, and eight other members. 19. The SMLB delivered its opinion on 21 November 2003. It found that at the maternity ward an abnormal foetal monitor printout had been reacted to belatedly. On the other hand, there was no reason to criticise the child's treatment at the paediatric clinic following birth. The Board considered that the positioning of the catheter had not caused blood coagulation and that no mistake had been made concerning the manner in which it was placed. Thus, the Board differed from the District Court on points that were material for establishing liability to pay compensation. 20. In the context of the Board's own procedure, the matter had first been referred direct to its Forensic Chamber composed of three Board members, all of whom were employees at the University Hospital and decided that they were not disqualified. The Forensic Chamber had sought two opinions on the applicant's birth, one – by a consultant surgeon and member of the Board – on the child's case history after birth, and the other by an external obstetrician on the mother's pregnancy and the child's birth. 21. At a meeting held on 18 November 2003, the SMLB had discussed and unanimously approved the two doctors' opinions and adopted its final opinion that was transmitted to the Supreme Court. The session had been presided over by one of the Forensic Chamber's three members, who had replaced the SMLB's Chair who had withdrawn on account of his previous involvement with the case as the Medical Director of Iceland. 22. At the oral hearing on 27 February 2004 before the Supreme Court, the applicant's lawyer complained of the procedure before the SMLB, but to no avail. 23. By a judgment of 11 March 2004 the Supreme Court overturned the District Court's finding that the State was liable to pay compensation to the applicant for negligence by the University Hospital. 24. Before turning to the merits, the Supreme Court dealt with the issue of disqualification: “As regards the conclusion of the SMLB and its Forensic Chamber, the respondent [the applicant] observes that doctors employed at the National and University Hospital took part in handling the matter and bringing it to a conclusion; that they, as employees of the appellant, were disqualified from doing so, and that consequently the SMLB's opinion was to be entirely disregarded. As noted above, it is the role of the SMLB to provide the courts with opinions on medical matters. The situation in Iceland is such that most experts in the field of medical science are employed at the National and University Hospital. Of the SMLB's nine members four are employed at the hospital, but none of the members taking part in this matter is employed at the department of obstetrics and gynaecology, nor at the Barnaspítali Hringsins paediatric hospital, and none was involved with the treatment of the respondent's illness, or of her mother. Furthermore, none of them is a member of the hospital's highest management, which has taken a stand with respect to this matter in conformity with the opinion of the doctors of the departments of obstetrics and neonatology. It has not been demonstrated that the Board's handling of the case was contrary to the SMLB Act and Regulation no. 192/1942 on the Procedure of the SMLB, or that the Board's resolution was influenced by any extraneous considerations. The Board's opinion and all other opinions provided in this case will have to be assessed in the light of the positions occupied by those who provide them.” 25. As to the merits, the Supreme Court concluded: “It is generally acknowledged that the use of arterial catheters may entail a danger of thrombosis. The respondent was dangerously ill and had been placed in a respirator, which demanded a monitoring of blood oxygen and acid/base levels and blood pressure, and the administration of fluids and drugs. The situation in which the doctors found themselves when they decided to leave the catheter alone must be kept in mind; as noted above, this provided the only arterial access, as matters had developed. It has not been established that a catheter lying in a loop entails an increased risk of thrombosis. As explained above, the experts consider that the respondent's brain damage was first and foremost due to hypoxia. The damage revealed by examinations of her brain is consistent with hypoxia, and it must be regarded as highly likely that this was the cause of her loss. Brain damage that might have followed thrombosis in the fifth day after the respondent's birth would on the other hand have appeared as haemorrhage due to hypertension, but such brain damage is not extensive. It is not, therefore, possible to say that there is a causal relationship between the positioning of the catheter and the respondent's brain damage. It has not been demonstrated that the respondent's loss is traceable to a fault on the part of the appellant's employees.” 26. The respondent Government drew particular attention to the following provisions of the Code of Civil Procedure, no. 91/1991: Article 44 “The judge shall in each case determine, by an assessment of the evidence adduced, whether an assertion relating to the facts at issue shall be regarded as proven, subject to any binding rules in this respect which may be expressly laid down by statute.” Article 46 “The parties shall collect evidence in so far as they are able to determine the subject matter of the action. The judge may, as he may consider necessary for purposes of clarification, invite the parties to collect evidence relating to particular facts of the case. If the judge deems that a fact, which a party desires to establish, is obviously irrelevant or that such evidence does not serve a purpose, he may prevent the party from adducing such evidence.” Article 104 “If the judge discovers, after he has received a case for adjudication, that the submissions of a party or the information on the facts provided by a party is seriously lacking in clarity, and the deficiency can be regarded as being due to the judge not having provided the parties with adequate guidance or made his observations known to them, he shall summon the parties to appear in court and, as the case may be, question them or draw their attention to the need for further evidence. The proceedings may be deferred as necessary; finally, the judge shall provide the parties with an opportunity to make observations supplementing their previous oral argumentation, and receive the case for adjudication anew.” Article 111 “The judge shall not, in his judgment or decision, grant any remedy that goes beyond that sought by the parties, except on points he raises on his own initiative. Any claim that has not been made in the summons shall be dismissed by the court, unless the defendant has agreed that the judge may consider it. The same shall apply to any increase in a monetary claim or any other changes to the defendant's detriment. The judge may not base his decision on a statement of facts or an objection which was not made during the proceedings, when it could have been. The judge shall assess, in the light of the circumstances, to what extent account should be taken of a fact referred to in a submitted document which was not specifically mentioned in support of the application or claim during oral pleadings. The judge shall assess, in the light of the circumstances, whether a party's silence with respect to an assertion or claim made by his adversary shall be regarded as an admission.” Article 163 “1. Judgments of the Supreme Court shall be based on the matters submitted in the relevant case and the facts that have been proved or admitted. The provisions of Article 111 shall apply to the Supreme Court's judgments. 2. The Supreme Court may base its resolution of a case on requests or factual submissions which were not made to the district court, provided they were referred to in the party's statement of case, the basis of the litigation remains unaltered, the failure to make them to the district court was excusable, and the party's rights would be adversely affected if they were not considered.” 27. The State Medico-Legal Board Act, No. 14/1942 (“the SMLB Act”), contains inter alia the following provisions: Section 2 “The State Medico-Legal Board shall have the role of providing the courts, the prosecution authorities and the supreme health authorities with expert opinions on medical matters. Among its functions shall be the provision of opinions on any medical certificates submitted to the courts, provided these are sent to the Board in accordance with a judicial decision. The State Medico-Legal Board shall provide the supreme health authorities with its opinions as to the propriety of a particular measure, action or conduct on the part of a doctor, dentist, masseur, pharmacist nurse, midwife or other similar health professional. The State Medico-Legal Board shall provide the supreme health authorities with its opinions relating to health measures of extensive scope, in particular measures to check the spread of infectious diseases.” Section 3 “The State Medico-Legal Board shall only attend to matters referred to the Board in accordance with the provisions of section 2 by the parties stated therein. The Board shall not provide opinions on the mental condition or criminal responsibility of any person, unless an expert opinion following suitable examination has already been obtained, assuming such examination was possible. The Board shall not provide an opinion on a person's cause of death, unless an expert opinion following an autopsy, or a report on loss of life in accordance with the applicable legislation in cases of violent or sudden death, has already been obtained, assuming such evidence was available.” Section 4 “The State Medico-Legal Board shall seek the opinions of outside experts on matters that are not within the specialist knowledge of its members. Before invalidating a doctor's certificate the board shall, if possible, offer the doctor in question an opportunity to put forward his arguments in support of his view. The Board shall, if possible, consult the person in question, and his professional organisation, on any matters specifically relating to a measure, an action or the conduct of a doctor or other health professional (cf. section 2, third paragraph), before providing its opinion.” Section 5 “No member of the State Medico-Legal Board shall take part in deciding a matter relating to himself or his principal, or with respect to which he has previously taken a stand, personally or in an official capacity. If the Board is prevented from carrying out its function as a result of any of its expert members being unable to take part in deciding a matter within his speciality, the Minister shall appoint such other expert as the Board may propose to replace him for the consideration of that particular matter.”