TRZEPALKO v. POLAND
Inadmissible
Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva
1. The applicant, Mr Andrzej Trzepałko, is a Polish national who was born in 1950 and lives in Pruszków. He was represented before the Court by Ms M. Krasnodębska and Ms M. Gąsiorowska, lawyers practising in Warsaw. 2. On 11 March 2007 the applicant’s thirty-year-old daughter went into labour after a normal pregnancy. At 3.40 a.m. she was admitted to the maternity ward of the Bródnowski Hospital in Warsaw and, following an episiotomy, gave birth to a healthy baby boy at 7.30 a.m. 3. Following the delivery, she repeatedly complained to her parents and the hospital staff about intense pain in the perineum. She was unable to care for the baby. It appears that she behaved unusually as she lost interest in the baby and attempted to leave the hospital. 4. According to the applicant, twenty-four hours following the delivery the level of his daughter’s white blood cells considerably decreased and she suffered from low blood pressure, low temperature, intense pain, incoherent speech and temporary loss of consciousness. The applicant submits that the hospital staff did not react to those symptoms and did not administer any treatment. 5. On 13 March 2007 the applicant’s daughter was transferred to the intensive care unit. On the following day the hospital contacted her parents to inform them that her condition was very serious. On 15 March 2007 she died. 6. On 16 March 2007 the applicant filed a criminal complaint with the Warsaw-Praga Północ District Prosecutor. The prosecutor instituted an investigation into the case of unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code). 7. On 22 March 2007 an autopsy was carried out. It established the presence of streptococcus A bacteria in the body of the applicant’s daughter. No such bacteria had been found at the hospital following the examination of the medical personnel and the hospital premises. 8. Upon the applicant’s request, the District Sanitary Inspectorate carried out a control of the hospital on 16, 19 and 20 March 2007. It established that the bacteria at issue had not been found in any of the patients who had shared the room with the applicant’s daughter, or in any of the hospital staff who assisted at the delivery, nor on the hospital premises. The inspectors identified a number of shortcomings at the hospital, such as overcrowding of the maternity ward, but concluded that none of these shortcomings could have led to the applicant’s daughter being infected with the bacteria. 9. On 28 September 2007 the District Prosecutor ordered that an expert in hospital infections prepare a report for the purposes of the investigation. The report, which took into account the medical notes of the applicant’s daughter, the results of the control carried out by the Sanitary Inspectorate and the records of witnesses’ interviews, was submitted on 8 August 2008. 10. The expert found that the death had almost certainly resulted from sepsis and the related Multiple organ dysfunction syndrome (MODS) caused by a streptococcus A. That bacterium, which had been identified in the body of the applicant’s daughter on 13 March 2007, created very dangerous toxins which led to sepsis carrying a particular risk of fatality. The infection most likely originated from the perineum and the bacteria had already been present there before the delivery. The probability that the bacteria was transmitted from the hospital environment had been lower that 10%. All factors pointed to the probability that the applicant’s daughter had been infected prior to her admission to the hospital. In particular, no other patients had been infected and the bacteria had not been present in the hospital environment. The expert excluded the possibility that the infection had resulted from medical negligence of the hospital staff. 11. As regards the medical treatment, the expert established that the actions of the doctors had been adequate with respect to the condition of the patient and compatible with medical science. They could be reproached for their lack of reaction during the first twenty-four hours; however the sepsis had developed in a particular manner, namely without any accompanying fever. There were no other symptoms suggesting a developing infection and the applicant’s daughter had complained about pain in the perineum, which was typical following a delivery. Furthermore, the applicant’s daughter took – without consulting the doctors – excessive doses of paracetamol which could have disguised the infection and caused paracetamol toxicity. Following the diagnosis of infection, the medical treatment administered was comprehensive and adequate and the hospital staff had acted with the requisite diligence. 12. In the course of the investigation the prosecutor also heard members of the medical personnel, fellow patients and friends who had visited the applicant’s daughter. 13. On 11 September 2008 the Warsaw-Praga Północ District Prosecutor discontinued the investigation, finding that the offence of unintentional homicide had not been committed. Having regard to all the evidence and, in particular, the expert report, the prosecutor found that the death of the applicant’s daughter had not resulted from medical negligence. The hospital staff had administered adequate and appropriate treatment for her condition and had not, in any degree, contributed to her death. 14. On 25 September 2008 the applicant’s lawyer appealed. She pointed out that two important witnesses, namely the head of the obstetrics department and the doctor who had supervised the applicant’s daughter, had not been heard. The prosecutor failed to establish whether other women had been infected with the same bacteria in the hospital despite the fact that the applicant had provided him with details of a woman who had been so infected. The applicant’s lawyer also contested the findings of the expert. In particular, she averred that the response of the medical personnel to the deteriorating condition of the applicant’s daughter within the first fortyeight hours had been inadequate and limited to administering pain killers. Furthermore, the expert had not addressed the fact that not all of the doctors, midwives and nurses working at the obstetrics department had been tested for the bacteria. The expert had wrongly assessed the evidence and had erred in concluding that there had been no medical error on the part of the hospital staff. Consequently, the prosecutor’s decision that the death of the applicant’s daughter had not resulted from the actions of the medical personnel had been erroneous and needed to be revisited. The applicant filed his own appeal. 15. On 27 November 2008 the Warsaw Praga-Północ District Court upheld the District Prosecutor’s decision of 11 September 2008. It held that the prosecutor had obtained sufficient and relevant evidence and had assessed it correctly. Similarly, there were no grounds to contest the prosecutor’s factual findings or his legal assessment of the case. 16. The court found that the appeals had not put forward any arguments which could have resulted in the quashing of the decision. More specifically, it held that the allegations of the prosecutor’’s decision was based on the ample evidence obtained from the hospital staff (doctors and nurses) and the fellow patients, and, in particular, on the results of the autopsy and the expert report. The expert concluded, with the probability nearing on certainty, that the death had resulted from sepsis and the related MODS caused by a streptococcus A bacteria. The infection had not originated from the hospital environment and had not been caused by medical negligence. As regards the treatment administered to the applicant’s daughter both during and following her labour, the expert considered it adequate and appropriate. The court, despite the applicant’s misgivings, found no grounds to contest the reliability of the expert report. Furthermore, it considered that the alleged prosecutor’s failures to obtain additional evidence proposed by the applicant would not in any event change the conclusion of the investigation. 17. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to a term of imprisonment between three months and five years.