A.V. v. ESTONIA
Inadmissible
Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković
1. The applicant, Ms A.V., is an Estonian national. The President granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Ms K. Rekand, a lawyer practising in Tallinn. 2. The Estonian Government (“the Government”) were represented by their Agent, Ms M. Kuurberg, of the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. The applicant’s mother E., aged 82, complained about lower back pain. She was diagnosed with radiculitis and hypertension by a general practitioner who also prescribed medicines for her. Since the pain did not disappear, E. was taken to hospital on 15 April 2013. She underwent an X-ray examination and was diagnosed with lumbar spondylosis and osteochondrosis. Medicines were prescribed for her and nursing care was ensured in Tapa Hospital. While in hospital, she developed gangrene. On 4 May 2013 she died in hospital. According to the notice of death the cause of her death was atherosclerosis with gangrene. 5. The applicant filed an offence report with the prosecutor’s office, which refused to initiate criminal proceedings, considering that no offence had been committed. On 19 July 2013 the State Prosecutor’s Office dismissed the applicant’s appeal. It was noted in the decision sent to the applicant that pursuant to Article 208 of the Code of Criminal Procedure, the victim of an alleged offence could lodge a complaint with a court of appeal against a refusal by the Prosecutor’s Office to initiate criminal proceedings. It was further stated that such a complaint had to be lodged through a lawyer. The applicant did not lodge a complaint. 6. The applicant also turned to the Expert Committee of Quality of Medical Aid (Tervishoiuteenuse kvaliteedi ekspertkomisjon). According to the Expert Committee’s opinion given on 21 November 2013 the applicant’s doubts and accusations that the staff of Tapa Hospital had not given E. the required treatment and nursing care and had failed in their duty of care and thereby caused E.’s death were groundless. Nevertheless, the Expert Committee noted that there were certain shortcomings in the documentation of E.’s treatment. It made recommendations to Tapa Hospital regarding the medical documentation and prevention and cure of pressure sores. It was noted in the Expert Committee’s assessment that the Committee’s assessment created no legal rights or obligations but it could be used as evidence in civil proceedings. 7. Article 117 of the Penal Code (Karistusseadustik) lays down that negligent homicide is punishable by up to three years’ imprisonment. 8. Article 119 of the Code provides that causing serious health damage through negligence is punishable by a pecuniary punishment or up to one year of imprisonment. 9. Article 123 of the Code provides that placing or leaving another person in a situation that is life-threatening or likely to cause serious damage to the health of the person is punishable by a pecuniary punishment or up to three years’ imprisonment. 10. Article 6 of the Code of Criminal Procedure (Kriminaalmenetluse seadustik) establishes the principle of mandatory criminal proceedings according to which the investigative bodies and the Public Prosecutor’s Office are required to conduct criminal proceedings when facts referring to a criminal offence have become evident. 11. The Code of Criminal Procedure further provides: “(1) An investigative body or the Public Prosecutor’s Office commences criminal proceedings by the first investigative activity or other procedural act if there is reason and grounds therefor and the circumstances provided for in Article 199 § 1 of this Code do not exist.” “(1) The reason for the commencement of criminal proceedings is a report of a criminal offence or other information indicating that a criminal offence has taken place. (2) The grounds for criminal proceedings are constituted by ascertainment of criminal elements in the reason for the criminal proceeding.” “(2) If a health care professional conducting an autopsy suspects that the person died as a result of a criminal offence, he or she is required to notify an investigative body or the Public Prosecutor’s Office of such suspicion immediately.” “(1) Criminal proceedings shall not be commenced if: 1. there are no grounds for criminal proceedings; ...” 12. Pursuant to Article 208 of the Code of Criminal Procedure, the victim of an alleged offence can lodge a complaint with a court of appeal against a refusal by the Prosecutor’s Office to initiate criminal proceedings. Such a complaint must be lodged through a lawyer. 13. Section 5 of the Establishment of the Cause of Death Act (Surma põhjuse tuvastamise seadus) provides that the death of a person who died at a hospital must be immediately notified to the person’s attending physician or doctor on call. Furthermore, if there is reason to believe that a person has died as a result of a criminal offence or as a result of external causes or a suspicion thereof, an investigative body or the Public Prosecutor’s Office must be immediately notified thereof. 14. Section 7 of the Act provides that the doctor having received a notice of death must immediately perform an external examination of the deceased in order to establish death and ascertain the cause thereof. If the cause of death cannot be established as a result of an external examination of the deceased or based on the information concerning his or her latest disease and treatment, the doctor must send the body for a pathoanatomical autopsy. 15. Upon ascertaining the elements of a criminal offence in respect of a death, the investigative body or the Public Prosecutor’s Office must commence criminal proceedings and order a forensic medical examination. In the case of a death caused by other external causes or a suspicion thereof or if the cause of death of a person is not established in another manner provided for in the law, the investigative body or the Public Prosecutor’s Office must send the body for a forensic medical autopsy (section 9 of the Act). 16. Section 14 of the Act provides that pathoanatomical autopsy is performed to ascertain an unclear cause death or in case of death caused by disease to assess the disease and the course thereof or if it is necessary in view of general health care and treatment quality if the cause of death cannot be established as the result of an external examination of the deceased and based on the information the doctor has on the last disease and treatment of the deceased, and there is no reason for a forensic medical autopsy or forensic medical examination in criminal proceedings. Pursuant to section 14(2) of the Act, a pathoanatomical autopsy must be performed, inter alia, in the case of an unclear death if there is no reason to believe that a person has died as a result of a criminal offence or due to external causes, in case of an unclear diagnosis of a disease in the person’s lifetime, if the person undergoing hospital treatment died at the hospital within the first twenty-four hours and the doctor has no data on the cause of death, or if the person died as a result of diagnostic or treatment methods. In addition, a pathoanatomical autopsy is performed at the written request of the persons close to the deceased. A pathoanatomical autopsy is not be performed in order to establish the cause of death if the deceased suffered from a chronic illness in his or her lifetime which has been recorded in the documents evidencing the provision of health care services to the person and which caused his or her death due to complications or becoming acute. 17. Section 128 of the Obligations Act (Võlaõigusseadus) stipulates that non-pecuniary damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person. 18. Section 134(2) provides that in the case of an obligation to compensate for damage arising from causing bodily injuries to or damage to the health of a person, the aggrieved person must be paid a reasonable amount of money as compensation for non-pecuniary damage. Section 134(3) provides that in the case of an obligation to compensate for damage arising from the death of a person or a serious bodily injury or health damage caused to the person, the persons close to the deceased or the aggrieved person may also claim compensation for non-pecuniary damage if payment of such compensation is justified by exceptional circumstances. 19. Section 759 provides that a contract for the provision of health care services is also, inter alia, deemed to have been entered into upon commencement of the provision of health care services or assumption of the obligation to provide health care services with the consent of a patient, and also if commencement of the provision of health care services to a patient without the capacity to exercise his or her will corresponds to his or her actual or presumed intention. 20. Section 762 stipulates that health care services must at the very least conform to the general level of medical science at the time the services are provided and the services must be provided with the care which can normally be expected of providers of health care services. If necessary, a provider of health care services must refer a patient to a specialist or involve a specialist in the treatment of the patient. 21. Section 766 sets out an obligation for the provider of health care services to inform the patient and to obtain the patient’s consent for his or her examination and the provision of health care services. 22. Section 767 concerns the provision of health care services to patients who are incapable of exercising their will. In such circumstances, the provision of health care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health care services promptly would put the life of the patient at risk or significantly damage his or her health. The intentions expressed earlier by a patient or his or her presumed intentions must, if possible, be ascertained using the help of his or her immediate family. The immediate family of the patient shall be informed of his or her state of health, the provision of health care services and the associated risks if this is possible in the circumstances. 23. Section 769 sets out the obligation of a provider of health care services to document the provision of health care services. 24. The Obligations Act further provides: “(1) Providers of health care services ... shall be liable only for the wrongful violation of their own obligations, particularly for errors in diagnosis and treatment and for violation of the obligation to inform patients and obtain their consent. (2) Providers of health care services shall also be liable for the activities of persons assisting them and for any defects in the equipment used upon the provision of health care services. (3) The burden of proof regarding circumstances which are the basis for the liability of the provider of health care services ... shall lie with the patient unless the provision of health care services to the patient is not documented as required. (4) If there is an error in diagnosis or treatment and a patient develops a health disorder which could probably have been avoided by ordinary treatment, the damage is presumed to have resulted from the error. In this case, the burden of proof regarding the damage resulting from the health disorder shall also lie with the patient.” 25. The rules on the non-contractual (delict-based) liability of the Obligations Act provide: “A person (tortfeasor) who unlawfully causes damage to another person (victim) shall compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to the law.” “(3) If the death, bodily injury or damage to the health of a person is caused as a result of the violation of a contractual obligation, the tortfeasor shall also be liable for such damage on the basis provided in this Chapter.” “(1) The causing of damage is unlawful if, above all, the damage is caused by: 1. causing the death of the victim; 2. causing bodily injury to or damage to the health of the victim;” “(1) Unless otherwise provided by law, a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable of causing the damage.” 26. Health Services Organisation Act (Tervishoiuteenuste korraldamise seadus) provides: “(1) The Expert Committee on Quality of Health Services ... is an advisory committee the purpose of which is to assess the quality of health care services provided to patients and to make proposals arising from the assessment to the Health Board, the Estonian Health Insurance Fund and the health care providers. (2) The Committee is competent to: 1. assess the quality of a health care service provided to a patient; 2. make propositions to the Health Board for initiation of supervision proceedings over the activity of a health care provider; ...” 27. Under section 60 of the Health Services Organisation Act, the Health Board, a governmental authority operating within the purview of the Ministry of Social Affairs, shall exercise supervision over compliance with the requirements established for health care providers. Individuals have a right to submit complaints to the Health Board regarding compliance with those requirements. 28. The Supreme Court in its judgment of 22 September 2010 (case no. 3-1-1-60-10) reiterated the principle of mandatory criminal proceedings provided for in Article 6 of the Code of Criminal Procedure. It noted that while the principle in dubio pro reo required that the accused was to be given the benefit of the doubt when a judgment was made, the principle in dubio pro duriore applied in respect of initiation of criminal proceedings and at that stage any suspicion of crime was to be interpreted in favour of initiation of the proceedings. Nevertheless, due to the prevailing attitudes in society persons could also be stigmatized by merely initiating criminal proceedings in respect of them. Therefore, it was objectionable to initiate criminal proceedings in a situation where no suspicion of a crime existed at all or was merely theoretical. 29. The Tallinn Court of Appeal in its decision of 14 February 2011 (case no. 1-10-15692) examined a complaint against the refusal of the Public Prosecutor’s Office to initiate criminal proceedings related to serious health damage allegedly caused by a medical error. The Court of Appeal ordered the Public Prosecutor’s Office to initiate criminal proceedings in order to clarify the circumstances described in the offence report. It noted, inter alia, with reference to a Supreme Court’s judgment of 29 November 2010 (case no. 3-1-1-79-10), that if non-legal specialist knowledge had to be applied in criminal proceedings, an expert opinion had to be sought, whereas the decisions of the Expert Committee on Quality of Health Services were not admissible as expert opinions in criminal proceedings. In that case the Court of Appeal had granted legal aid to the alleged victim for filing the complaint with it against the decision of the Public Prosecutor’s Office. 30. The Supreme Court in its decision of 11 April 2011 (case no. 3-1-1-97-10) confirmed the generally recognized concept that, for example, in case of manslaughter or murder the next-of-kin of the killed person was to be considered a victim. 31. The Tallinn Court of Appeal in its judgment of 19 October 2011 (case no. 1-09-21700), in a case concerning manslaughter, agreed with the lower court that had awarded the victim’s next-of-kin non-pecuniary damages. The Court of Appeal found that unlawful causing of the death of a person’s very close next-of-kin (the person’s son) should be considered an exceptional circumstance within the meaning of section 134(3) of the Obligations Act (see paragraph 18 above). 32. Further cases provide examples concerning medical negligence and related issues, such as conviction of a doctor of causing serious health damage through negligence under Article 119 of the Penal Code (Supreme Court’s judgment of 29 November 2010, case no. 3-1-1-79-10, followed by the Tallinn Court of Appeal’s judgment of 27 June 2013 in the same case (no. 1-12-5377) in which also pecuniary and non-pecuniary damages were awarded), and conviction of an employee of the emergency call centre for leaving a person in a life-threatening situation under Article 123 of the Penal Code (Tartu County Court’s judgment of 16 September 2009, case no. 1-09-9063; subsequent to the criminal proceedings, the spouse of the deceased also initiated administrative court proceedings, was granted legal aid and awarded pecuniary and non-pecuniary damages). The Tallinn Court of Appeal, by a judgment of 18 May 2007 (case no. 1-06-4949), acquitted an ambulance worker who had been charged with negligent homicide under Article 117 of the Penal Code for not having taken an intoxicated person with signs of trauma and problems of consciousness to the hospital but instead having handed the person over to the police. 33. As regards the connection between the criminal and civil proceedings in alleged medical malpractice cases, Tartu Court of Appeal in its decision of 24 April 2007 (case no. 1-07-4017) confirmed the State Prosecutor’s Office’s decision that failure of a doctor to comply with the duty of notification about medical treatment or keeping a documentary record of the treatment can be unlawful under civil law, but cannot entail a criminal liability. The Court of Appeal stressed that the violation of a duty under the Obligations Act entails liability under civil law, but that type of liability falls outside the scope of criminal proceedings. 34. As regards civil liability, the Supreme Court in its judgment of 8 April 2011 (no. 3-2-1-171-10) noted that a victim may claim compensation for the damage caused by the non-conforming health care service first and foremost on the basis of a breach of the health care services contract. In addition, in the case of causing health damage to a person as a result of a violation of contractual obligations the health care provider may also be liable under the provisions concerning compensation for unlawfully caused damage (non-contractual liability) (section 1044 et seq. of the Obligations Act; see paragraph 25 above). In such a case, the victims may submit their claims alternatively and the legal basis of the claim has to be determined by a court regardless of the arguments of the parties. 35. The Tallinn Court of Appeal in its judgment of 22 September 2008 (case no. 2-05-2059) reiterated that in the case of an error in diagnosis or treatment resulting in health damage to the patient, which could have probably been avoided by ordinary treatment, it is presumed that the damage occurred as a result of the error. The absence of the causal link must be proved by the defendant. In that case, the plaintiff was awarded compensation for non-pecuniary damage. The court also noted that an opinion of the Expert Committee on Quality of Health Services constituted documentary evidence in civil court proceedings. 36. In several medical negligence cases non-pecuniary damages have been awarded. These include cases in which the duty of notifying the plaintiffs and obtaining their consent had been breached (Tartu Court of Appeal’s judgment of 2 December 2013 (case no. 2-10-61884), and Tartu Court of Appeal’s judgment of 9 October 2013 (case no. 2-06-9959); in the latter case the Supreme Court also granted the complainant’s request for legal aid for filing an appeal with it). 37. In a judgment of 15 February 2014 (case no. 2-14-13101) the Viru County Court dealt with the liability related to the provision of health care services. The court relied, inter alia, on the opinion of the Expert Committee on Quality of Health Services. It noted that breach of the duty to notify the patient or to obtain the patient’s consent did not serve as sufficient grounds for awarding damages if the patient had not sustained health damage as a result thereof. In that case the plaintiff had been granted legal aid. 38. The Supreme Court in its judgment of 9 April 2008 (case no. 3-2-1-19-08) noted that a person who had unlawfully been the victim of a bodily injury or health damage but who had only died later due to this also acquired the right to claim monetary compensation for non-pecuniary damage under section 130(2) of the Obligations Act. Under the conditions provided for in section 166(1) of the Obligations Act, such claims could be transferred or bequeathed, that is the successors of the deceased person could also file such a claim. In this case, the plaintiff had not acted as a successor in claiming compensation for the possible non-pecuniary damage caused to her spouse. The Supreme Court further noted that under section 134(3) of the Obligations Act the next-of-kin of a person who had died or sustained a serious injury or health damage could also claim compensation for non-pecuniary damage if payment of such compensation was justified by exceptional circumstances. Analysing the notion of “exceptional circumstances”, the Supreme Court found that these did not comprise causing of death or serious health damage as such and noted that grief inevitably accompanied the death of a close person. Rather, a compensation claim of next-of-kin was justified in case of spatial proximity with the next-of-kin at the time of causing of the damage or being a direct witness of an accident or its consequences as well as subsequent distress caused by seeing the injuries or suffering of the died or injured next-of-kin. 39. In a judgment of 14 February 2012 (case no. 2-06-17756) the Tallinn Court of Appeal dealt with a claim against the hospital for compensation for damage due to the causing of the death of the plaintiff’s mother. The court, inter alia, considered that an opinion of the Expert Committee on Quality of Health Services was admissible as documentary evidence. Relying on the said opinion, expert assessment ordered by the first-instance court and other evidence, the courts found that there was no causal link between the provision of the health care service and the death of the plaintiff’s mother. As regards the damage, the Court of Appeal noted that under section 134(3) of the Obligations Act the next-of-kin of the deceased also had an independent right of claim but held that the plaintiff had to substantiate and prove the existence of “exceptional circumstances” within the meaning of section 134(3). 40. In a case decided by the Supreme Court on 15 November 2013 (case no. 3-2-1-131-13) the courts established an error in treatment by a hospital that had caused the death of the plaintiffs’ new-born child and ordered the defendant to pay EUR 7,000 to the mother and EUR 3,000 to the father for non-pecuniary damage. 41. Lastly, further examples show that plaintiffs have been granted legal aid in proceedings related to compensation claims in medical negligence cases (cases nos. 2-09-9677 and 2-09-1724).