SKRASKOWSKI v. POLAND
Inadmissible
The applicant is a Polish national, born in 1946 and living in Żarów. A. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's wife, born in 1947, had high blood pressure and suffered from a heart condition. On 19 February 1996 her physician referred her to a hospital. Apparently on the same date, doctors S. and S. in Żarów hospital examined her, gave her drugs against high blood pressure and refused admission. Allegedly, one of the physicians suggested that she should become his private patient. On 1 March 1996 she felt unwell and three times called an ambulance from the State-run emergency service. In the afternoon, during the first visit, she was given a prescription for certain drugs to reduce her high blood pressure. At midnight, during a second visit of the ambulance, a physician gave her an injection of the drug “Dexaven”. The applicant alleges that as a result of this injection her general condition worsened abruptly. The Government refute this allegation. The applicant insisted that she should be taken to a hospital, in particular in view of the referral of 19 February, but this was refused. She was taken to the hospital in the morning of 2 March 1996, where at 7.30 a.m., fifteen minutes after her admission, she died of myocardial infarction. The applicant requested that criminal proceedings be instituted concerning his wife's death. On 16 July 1996 the Świdnica District Prosecutor requested the Poznań Medical Academy to prepare an expert report concerning the causes of her death. The report was submitted on 18 December 1996. On 31 December 1996 the Świdnica District Prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The Prosecutor had regard to the expert report, prepared by three experts: two cardiologists and forensic medicine specialist. The applicant appealed against this decision. He stated that the decision was ill-founded and that, in view of her serious condition, his wife should have been taken to hospital much earlier. He complained that the investigations had lasted unreasonably long. Lastly, he submitted that it was impossible that his wife could have become mortally ill in a very short period without there being medical negligence in the handling of her case. On 24 February 1997 the Wałbrzych Regional Prosecutor upheld the decision under appeal. He considered that the contested decision was lawful and that the lower prosecutor had duly taken into consideration the experts' conclusions. In view of the fact that the applicant had alleged that experts from Wrocław would have lacked impartiality, the District Prosecutor had requested that, in order to dispel any doubts as to the experts impartiality, the expert report be prepared by physicians from Poznań. It was true that the report had been submitted to the Prosecutor only on 18 December 1996, but, having regard to the heavy case-load of forensic medicine experts throughout Poland, this delay could not be considered abnormal. The report had been prepared by three experts - two cardiologists and one specialist in forensic medicine. The prosecutor stressed that there were no indications that there had been any personal relationship between the experts and the physicians who had given the medical treatment to the applicant's wife. The Prosecutor further had regard to the conclusions of the experts. They had established in their report that during the second visit of the emergency services, doctor K.S. had administered to the applicant’s wife an injection of "Dexaven", but they had not found a causal link between this fact and a subsequent rapid deterioration of her general condition. They had emphasised that the applicant's wife had received adequate medical care. She had died of myocardial infarction, which must have occurred after the second visit of the ambulance. It had been only during the third visit that she had symptoms of a dyspnoea (difficulty in breathing), typical in cases of cardiac insufficiency, and the physician had taken the correct decision to take her to a hospital on that account. Given the sudden nature of myocardial infarction, it could have developed so quickly as to cause her death within a short time, without there being any medical negligence to contribute to it. The experts concluded that it could not be assessed with absolute certainty whether the applicant's wife could have survived had she been taken to the hospital at the second visit of the ambulance. Regard being had to the fact that the experts had found no indications of negligence in the handling of the applicant's wife case, which involved a rapid myocardial infarction, the prosecutor decided that the lower prosecutor's office had been correct in finding that the persons who had given the treatment to her had no case to answer. B. Relevant domestic law and practice The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of the Chambers is mandatory. Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers. Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians. The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989. Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. While investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant. If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of an alleged offence and written grounds. Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed. A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court. Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date. Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent's decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents, which are not covered by medical secrecy. Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians. Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.