SEVİM GÜNGÖR v. TURKEY
Inadmissible
András Sajó;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
“... the patient was in pain and unresponsive, had severe lung and circulatory insufficiency, severe and widespread decubitus ulcers and was in sepsis ... that night, at around 2 a.m., the nurse on duty, Ms Z.Ç., came to my office and informed me that the patient had probably died. I immediately went to the patient’s room. When I entered the room I saw that the patient’s pupils were bilaterally fixed and dilated. [Her] respiration had ceased and her heart monitor showed a flat line. As you know there is no indication to attempt resuscitation on a patient who has suffered multiple organ failure, brain death and cardiac asystole. Therefore there was no attempt to resuscitate the patient. The patient’s relative’s allegations ... are not true. It is against universal ethical considerations to reprimand a near-death patient’s relative. I do not accept the accusations against me.” “... after Dr I.C. performed the first medical interventions I took over responsibility for the patient. I changed the dressings twice a day. Later on I performed, after consulting with Dr I.C., a debridement on the region which was infected. Since the procedure is done on dead tissue it is impossible for the patient to shout out in pain ... I took a sample from the infected wound. ... Dr I.Ç. told me that the micro-organisms on the wound were susceptible to [the drug] imipenem and asked if it would be acceptable to me if they administered it. I told them that if the patient’s clinical condition permitted, they could use it. Contrary to the allegations, I did not give either direct or indirect orders for the administration of imipenem since I was not the doctor primarily responsible for the deceased ...” “The patient was admitted to the intensive care unit on 31 December 1997 .... The patient’s general condition was extremely bad. She was unconscious, dehydrated ... She was fitted with a urine catheter to relieve her bladder ... We consulted with the cardiology department ... The patient had decubitus ulcers covered with necrotic material. We consulted with the plastic-surgery department. Dr R.Ö. examined the patient. A debridement was performed on the ulcers and a sample was taken for examination. The patient was treated with cephalosporin-type antibiotics. In the following days, according to the results of the samples, the wound was susceptible to imipenem. Accordingly, on the recommendation of Dr R.Ö., the treatment with cephalosporin-type antibiotics was stopped and the patient was treated with Tienam500... Nothing was said between the patient’s daughter and me concerning the patient’s allergy to penicillin and beta-lactamase inhibitors. I believe that the patient died because her general health was terrible and she was at the terminal stage, rather than from an allergy.” In her testimony nurse Z.Ç. stated, inter alia, the following: “... I periodically monitored the patient until her death on 15 January 1998. During this time there was no significant improvement in her health. I was on duty the night she died. Dr M.K. was the doctor on duty. At 5 p.m. Dr I.Ç. ordered the infusion of Tienam-500 to the patient. I complied with this order at 10 p.m. I did not see any negative changes in the patient’s general state when I entered the room later on to check on the patient’s blood pressure. At around 3.30 to 4 a.m., I saw [the applicant] leaving the patient’s room and entering Dr M.K.’s room. They both entered the patient’s room. When I tried to enter the room [the applicant] shouted that I had killed the patient with the injection. Dr M.K. tried to calm [the applicant] down. Despite our efforts she did not let us take the deceased out of the room until 5.30 a.m. ... I did not see any negative reaction towards [the applicant] and the patient on the part of Dr M.K. ... I did not see or receive any order from Dr R.Ö. ...” “I called the gastroenterology clinic and they recommended Dr A.G. I called him, told him that the doctor who treated my mother at home had recommended nasogastric intubation and asked him what reference number I needed to buy. He told me that if I brought in my mother they would insert the tube and treat her ... I believe that the patient was administered medicines that she was allergic to during her treatment. My mother was allergic to beta-lactamase and penicillin-type antibiotics. I did not say this before because I was not asked. I was not in the patient’s room during the treatment. A plastic surgeon outside (whose name I cannot remember at the moment – his first name was probably Mehmet) told me that the decubitus ulcers on her back were not infected and that they would heal with bandages. I think that they became infected after the debridement. If they had not given [the] patient antibiotics for the infection, she would not have died within fifteen minutes after the injection. The night my mother died, I told Dr M.K. that my mother was not well. However, he refused to intervene and told me off. Dr E.D. is a witness to this action. When Dr M.K. returned from my mother’s room he told me that my mother had died. The wound had been bandaged by Dr R.Ö.” “I do not want a lawyer. The deceased’s daughter called me and said that her mother was very ill and asked me to help her. ... I told her to urgently bring her mother to the hospital. When the patient arrived on a stretcher, she was unconscious, extremely dehydrated and weak. Her stomach was swollen and she had widespread decubitus ulcers. She was taken into intensive care. The patient was treated with all the necessary treatments available in modern science by our team (gastroenterology, cardiology, neurology and plastic surgery). When the patient arrived, she was near death. Despite our swift and continuous treatment her general condition did not change. Unfortunately, the predestined end prevailed.” “Prof. Dr A.G asked me to see the patient and I saw the patient the very same day. The patient’s general heath was very bad. She had infected wounds in the lower back. The wounds were in a bad condition. I ordered a debridement, which was performed by Dr R.Ö. Afterwards I examined the patient four times. It was the plastic-surgery department which monitored the state of the wounds. It was recommended that the gastroenterology department should administer antibiotics to the patient. We made every effort to cure the patient. We are also sad at the outcome; however, there is no cure for death. The patient had not been taken good care of for weeks (thin, malnutrition, barely conscious).” In his testimony the applicant’s witness, Mr Y.U., stated the following: “The deceased and her daughter are relatives of my wife. I have not seen the deceased for over fifteen years. In any event, I only saw her twice in my life. I learned of her death when her daughter came to visit us in Yalova, a long time after her death. I did not see the deceased during her illness. I do not know what kind of treatment was given to her in the hospital. I have no other knowledge apart from what her daughter told me. She told me that her mother had not been treated well in the hospital and that she had died as a result of the injections administered to her despite her allergy to antibiotics. I didn’t believe the things she said. I have nothing else to say.” The relevant domestic law applicable at the time of the events is as follows. Article 17 of the Constitution provides that everyone has the right to life. The relevant provision of the Criminal Code read as follows: “Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.”