CASE OF ERDİNÇ KURT AND OTHERS v. TURKEY
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Jon Fridrik Kjølbro;Ledi Bianku;Nebojša Vučinić;Robert Spano;Georges Ravarani
5. The applicants were born in 1974, 1975 and 2003 respectively and live in Ankara. 6. In 2004 Duru Kurt’s parents took her to the Ankara SSK hospital because they thought that she was displaying symptoms of heart problems. The child was examined and then transferred to the Sami Ulus paediatric hospital, where she was treated for two years, after which the doctors decided that she should undergo heart surgery. 7. Before the operation, which took place on 19 July 2006, the patient’s father signed a form setting out the potential risks facing his daughter in undergoing the surgical operation, consenting to the operation (“the consent form”). 8. During the post-operative check-ups a leak was detected on the periphery of the membrane covering the incision. 9. On 8 February 2007, by decision of the hospital medical board, the patient underwent a second operation carried out by a different medical team. Prior to the operation, the patient’s father signed a consent form identical to the first one. That form did not mention any risk of a serious neurological problem, but specified that the list of possible sequelae was not exhaustive. 10. After that second operation, the patient suffered an oedema, a brain haemorrhage, liver failure and muscle spasticity while in intensive care. 11. On 6 July 2007 the applicants lodged a complaint against the doctors who had carried out the operations. 12. On 11 July 2007 the medical board of the Dışkapı paediatric hospital in Ankara diagnosed the child with a severe irremediable psychomotor disability (caused by hypoxic ischemic encephalopathy), estimating her disability rate at 92%. 13. On 16 July 2007, pursuant to standard procedure, the prosecutor’s office applied to the Governor of Ankara for authorisation to prosecute. 14. The report drawn up following the internal investigation commissioned by the Governor’s Office stated that the patient was suffering from a very serious congenital heart disease, that treating that disease would entail a high-risk surgical operation and that in 52% of cases a leak was noted around the membrane, necessitating a second operation. It concluded that the medical team had not been guilty of negligence during the first operation. 15. According to the aforementioned report, the second operation, which had been carried out to rectify the leak, had also been very risky. The report pointed out that the patient’s neurological complications had been a common occurrence during open-heart surgery and that they occurred when artificial pumps were installed to maintain blood circulation or where the patient was placed in hypothermia. It added that the patient continued to suffer from sequelae despite the treatment administered after the second operation. In conclusion, the investigator recommended not authorising a criminal prosecution. This preliminary investigation report explained that the relevant persons had been questioned by the instigator. It is not known in what capacity the author of the report, who is a doctor, was involved or to which hospital he is attached. 16. On 6 September 2007, as recommended by the preliminary investigation report, the Governor’s Office refused to authorise prosecution. 17. The applicants’ challenge to that administrative decision was dismissed by the Regional Administrative Court on 18 December 2007 on the grounds that the preliminary investigation report and the appendices thereto were not such as to enable the prosecutor’s office to instigate a judicial investigation. 18. Consequently, on 28 September 2008 the prosecutor’s office issued a discontinuance decision. 19. Concurrently with the criminal proceedings, the applicants lodged a complaint with the Ankara Medical Association. 20. The expert appointed by the latter submitted his report on 14 July 2008. This one-page document stated that the patient had displayed a congenital anomalous left coronary artery from the pulmonary artery (ALCAPA), that open-heart surgery had been carried out in order to irrigate the left coronary artery from the aorta, that six months later a leak had been detected on the membrane which had been applied to the incision during that first operation, that a second operation had been carried out which had resolved that problem, but that the patient had suffered a stroke. The expert pointed out that the patient’s anomaly had been extremely serious, that it was liable to be fatal, and that the probability of complications occurring during or after such an operation had been high. The expert took the view that the second operation, geared to treating a foreseeable complication stemming from the first operation, had in fact been even riskier. He considered that open-heart surgery presented risks not only to the organ being operated on but also to other organs. The expert concluded his report as follows: “The stroke [suffered by] the patient Duru Kurt was one of the possible complications occurring during open-heart surgery. No negligence or fault has been noted on the part of the medical teams which carried out the first and second operations. The teams showed great efficiency and a high degree of medical expertise. The complication [which occurred in the present case] was an eventuality which can be observed in cases of anomalies [such as that suffered by the patient] and as a result of open-heart surgery.” 21. On 23 May 2008 the applicants brought an action for damages against the doctors before the Ankara Civil Court of General Jurisdiction (“CCGJ”) alleging that they had not practised their profession properly and had caused the very severe sequelae with which their daughter Duru Kurt was afflicted. In support of their claim they submitted a private expert report dated 13 May 2008 on the amount of the damages. 22. On 26 March 2009 the CCGJ appointed a board of experts comprising two professors and a lecturer in cardiovascular surgery from Ankara University. 23. The board of experts submitted its report on 31 July 2009. 24. According to that report the patient had originally been diagnosed with dilated cardiomyopathy (an illness which significantly diminishes the “pumping” capacity of the heart) at Ankara University Hospital, and following more detailed examinations at the Sami Ulus Hospital, ALCAPA, also known as Bland-White-Garland syndrome, had been diagnosed. 25. The experts explained that the patient had undergone a Takeuchi operation to create an intrapulmonary tunnel and that a leak had been noted on the periphery of the membrane during the check-ups conducted six months later. They stated that that leak had led to a second surgical operation, that the patient had been placed on respiratory support owing to the emergence of a tonic-clonic contraction after the operation and that the neurological sequelae had appeared during that period of intensive care. 26. After those initial findings, the experts stated in their report that the heart disease from which the patient suffered and for which she had undergone surgery was rare, accounting for 0.5% of all congenital heart diseases. Without treatment the mortality rate was between 80% and 90%, and those affected seldom reached adulthood. The board of experts considered that the only treatment for that disease was surgery, and that the most appropriate type of surgery was the Takeuchi operation. The board added that the latter had a mortality rate of up to 23%, that in 50% of all cases a leak could occur around the membrane following such heart surgery and that, taking all types of complications together, the rate of re-operation was up to 30%. 27. The experts added that in 10% to 29% of cases congenital cardiovascular diseases were accompanied by neurological disorders, and that a multi-country study had shown that the rate of neurological damage in the immediate post-operative period stood at 20%. 28. In their conclusions, the experts pointed out that ALCAPA was a very serious heart disorder and that the patient’s parents had signed a consent form before their child’s operation. They considered that the fact of the patient’s dilated cardiomyopathy had further exacerbated the already serious risks posed by the operation. According to the report, the leak which had been observed around the membrane after the first operation had been a complication which occurred in 50 % of cases, and the operation carried out to resolve that issue had been even riskier than the first one. The experts also pointed out that the neurological damage suffered by the patient had been a complication which was often encountered in cases of patients suffering from a congenital heart defect who underwent post-operative intensive care. 29. The report, which quoted twenty or so bibliographical sources, ended with the following words: “In short, this patient’s situation could be seen as one large complication. There can be no question of the doctors having committed a medical or surgical error.” 30. The applicants contested the report, deeming it inadequate. They considered that the document, which cited scientific studies, was more like a magazine article than an expert report. It contained no concrete and objective facts about the case in hand and would not help in determining the dispute. The applicants did not deny that there had been a risk, but considered that neither that risk nor the signing of a consent form released the doctors from their duty to practise their profession properly. They submitted, however, that the report, which lacked any explanations or reasoning on that point, had not mentioned any checks carried out with regard to the risk factors. Consequently, they asked the court to commission a second expert assessment, either from a different medical board or from a specialist section of the Istanbul Institute of Forensic Sciences. 31. By judgment of 3 November 2009 the CCGJ rejected the applicants request for a second expert assessment. With regard to the expert report of 31 July 2009 and the facts set out in the prosecution investigation file, the court held that the doctors had not been responsible for the sequelae affecting the child after her high-risk operations, to which her parents had given their consent. 32. The parents lodged an appeal on points of law against that judgment, reiterating their previous criticism of the expert report, which they considered inadequate. They also emphasised that the report had been based on the medical file and that their daughter had not been examined by the experts. Furthermore, under established case-law, the experts should have begun by explaining the acts and procedures required by medical lege artis and comparing them with the acts which the doctors in question had actually carried out in order to determine whether and how far the said rules had been observed. Furthermore, they submitted that it was not the courts’ usual practice in this type of case to confine themselves to a single expert report. In that connection, the rejection of their request for a second expert report had amounted to a blatant injustice. They alleged, moreover, that one of the doctors who should have been present during the operation had stayed away from the theatre after having been alerted by telephone that the patient’s heart had stopped during the operation, pointing out that the expert report had neither analysed nor even mentioned that fact. 33. Their appeal was dismissed by judgment of 20 April 2010. 34. On 7 October 2010 the Court of Cassation also dismissed the applicants’ application for rectification.