ERIKSON v. ITALY
Inadmissible
Elisabeth Palm
The applicant is a British national, born in 1945 and living in Rome. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant's mother, born in 1906, used to live in Antella, near Florence, assisted on a daily basis at her domicile by R.O. On an unspecified date near the end of September 1989 the applicant's mother telephoned to the public care doctor, Mr. G.T., requesting his assistance because her lower abdomen was painful and swelling. The doctor, allegedly without visiting her, wrote a medical prescription recommending x-rays of the applicant's abdomen; he left the prescription with the local pharmacy, where R.O. went to fetch it on behalf of the applicant’s mother. On 28 September 1989 the applicant's mother went to the local public hospital Santa Maria dell'Annunziata to have x-rays of her abdomen; she was accompanied by R.O. She was made to drink barium before undergoing the examination; X-rays were taken of her stomach. She collapsed during the examination; however, despite her serious health condition, she was subsequently discharged from hospital and sent back home in a wheel-chair. The x-ray plates bear the stamp of the Radiology Department but were not signed by the radiologist who carried out the examination, nor was his name indicated. The next morning, on 29 September 1989, the applicant's mother was seized by extremely severe pain. She was taken by ambulance to the above hospital at 13h10, where she died at 14h00 of an intestinal occlusion. The applicant learned about his mother's death on that same day. In February 1992 the applicant happened to discuss the circumstances of his mother's death in detail with a doctor friend of his, who requested to examine the x-ray plates taken of the applicant's mother on 28 September 1989. The applicant obtained from the hospital copy of his mother's medical file including the x-ray plates and subsequently submitted them to the doctor, who on 25 September 1992 drafted a medical report according to which the x-ray plates clearly showed that the applicant's mother had an intestinal occlusion. Such report also stated that a dose of barium on top of an intestinal occlusion is likely to be very dangerous. The applicant obtained a second medical report from another doctor, dated 31 October 1992 and supporting the findings of the first. A third medical report was drafted by a third specialist on 11 January 1993. On 23 January 1993 the applicant filed a criminal complaint with the Magistrate's Court of Florence, claiming that Mr. G.T., the public care doctor who had recommended an x-ray examination of the applicant's mother without examining her beforehand, was to be held responsible for her death and seeking that the identity of any other person responsible for his mother's death be established and that they all be prosecuted for manslaughter. Investigations were opened against G.T. and other unidentified persons under file no. 4800/93. On 7 June 1993 the Florence Public Prosecutor interrogated G.T. in the presence of his counsel. He claimed that he had visited the applicant's mother before recommending x-rays of her abdomen and that he had left the prescription with her. He said he had suspected a tumour but not an intestinal occlusion. He further stated that, after being informed of the applicant's mother's death, he had learned that she had collapsed during the x-ray examination but had not been kept in hospital, which he had found unreasonable on the part of the hospital. He stated that he did not know the identity of the radiologist who had carried out the examination. On 27 June 1994 the Florence Public Prosecutor heard R.O. as a witness; she described the circumstances of the applicant's mother's death and claimed that the applicant's mother had not been visited by the doctor G.T. on the day at issue and that she herself had gone to the pharmacy to fetch the prescription for the X-rays. F.P., a doctor who was on duty at the hospital on 29 September 1989, was also heard as a witness on an unspecified date. On 10 October 1994 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the investigations were insufficient and inappropriate to support an accusation in court ("gli elementi raccolti non sono sufficienti ed idonei a sostenere l'accusa in giudizio"). On 3 February 1995 the applicant filed an objection to the request to discontinue the investigations (opposizione alla richiesta di archiviazione). He underlined that the Public Prosecutor had not sought to establish the identity of the radiologist who had carried out the x-ray examination of his mother and requested that L.T., the director of the Radiology Department of the hospital, be heard in order to ascertain which radiologists had been on duty on 28 September 1989. He further pointed out significative inconsistencies in the testimony of G.T. By a decision of 7 April 1995 the Florence Judge for the Preliminary Investigation ruled that the investigation be discontinued on the ground that, in the light of the investigations carried out, the elements of the alleged negligence of G.T. and of the unidentified radiologist were insufficient to support an accusation in court. On 3 July 1995 the applicant requested the Florence Judge for the Preliminary Investigation to reopen the investigations. This request was granted on 6 October 1995 in respect of the unidentified radiologist. On 6 November 1995 the Florence Public Prosecutor requested the police to take evidence from all employees of the Radiology Department of the hospital who had been present on 28 September 1989, with a view to identifying the author of the medical report which was drawn up after the x-rays had been taken, and establishing which typing machine had been used. Four of the hospital employees - T.B., F.N., R.C., M.M. - were heard by the police on 27 November 1995. They explained inter alia that in the hospital there was one computer which was used as a typing machine and an ordinary typing machine. Urgent medical reports were written by hand by the doctors immediately after the examination, whereas non-urgent ones were dictated by doctors and only subsequently typed by an employee, M.T.. Doctors would sometimes type their reports themselves, in particular the Director of the Department. The witnesses were shown the medical report on the condition of the applicant's mother, drafted on 28 September 1989, and found it unusual; they declared that that kind of x-ray examination was always carried out by a doctor assisted by a technician. They noticed that the report lacked the indication of the name of the doctor and stated that it should not have been stamped with the name of the Department. Some of them thought that it had been typed on the ordinary typing machine and not on the computer. M.T., the employee who used to type non-urgent medical reports, was interrogated by the police on 28 November 1995. She explained that the ordinary typing machine was kept in the doctors' room. She further explained that she used to type the medical reports on behalf of the doctors, who would sign them at the end of the day; the reports would not be stamped with the Department's name. She was shown the report drafted on 28 September 1989 and declared that she had not typed it and that she thought it had not been typed by any of the administrative personnel because it did not bear the name of the responsible doctor. On 1 February 1996 M.C., a radiologist, was examined by the police. He confirmed that non-urgent reports would be dictated by the responsible doctors and typed by the administrative personnel whereas urgent reports would be immediately drafted by hand by the responsible doctors; only the Director of the Department used to type his reports himself. He was shown the report drafted on 28 September 1989 and confirmed that such kind of examination would be carried out by a doctor assisted by a technician, but could not remember whether he had carried it out himself although he thought he had not, as the report did not have the same characteristics as his usual ones. He noticed that the report did not bear the indication of the name of the responsible doctor and was not signed, and that it had been stamped with the name of the Department, which was unusual. He further said that if he had been aware of a situation similar to that described in the medical report at issue, he would have tried to contact the patient's family or family doctor to point out the gravity of the situation. On 15 January 1996 L.T., the Director of the Radiology Department, was interrogated by the police. He stated that he had been informed of the case of the applicant's mother only in 1992, when the applicant had requested certain information from him which he could not provide. He explained that in September 1989 radiologists and technicians were organised in shifts; the shift tables used to be thrown away after the end of the relevant week, as they were used only for the purpose of internal organisation. He examined the report of 28 September 1989 and noticed the absence of the responsible doctor's name and signature; he stated that doctors did not type medical reports themselves, but wrote them by hand in urgent cases. On 12 March 1996 the Public Prosecutor requested that the investigations be discontinued on the ground that the elements gathered in the course of the "extremely accurate" investigations carried out by the police had not led to the precise but only to the "probable" identification of the radiologist who had carried out the examination of the applicant's mother without realising her serious medical condition. The Public Prosecutor considered, however, that the gathered elements, although credible, were insufficient to support an accusation in court which could only be based on logical deductions not supported by precise documentary evidence. On the other hand, the Public Prosecutor considered that the testimonies did not entirely support the deductions of the police. On 9 April 1996 the applicant filed an objection to the request to discontinue the investigations. He requested in the first place that further investigations be carried out in respect of G.T. He further underlined certain inconsistencies in the testimony of L.T. He requested that investigations be carried out about who was in possession of the stamp which had been put on the report at issue, given that it was obviously unusual to stamp medical reports with the name of the Department and about the characteristics of the reports drafted by L.T. He finally requested that further investigations be carried out with a view to establishing whether the report had been drafted by a technician instead of a doctor. By a decision dated 17 October 1996, the Florence Judge for the Preliminary Investigations ruled that the investigations against unknown persons for the manslaughter of the applicant's mother be discontinued. The judge pointed out in the first place that, by decision of 6 October 1995, the investigations had been reopened only in respect of unknown persons and not also in respect of G.T.. The judge further held that the elements gathered in the course of the investigations were insufficient to support an accusation in court and that the further investigations requested by the applicant would not have helped establish the truth. The applicant appealed to the Court of Cassation against this decision. By a decision dated 24 December 1996, the Court of Cassation rejected the request on the ground that it was not within its competence to review a matter pertaining to the competent Public Prosecutor's margin of appreciation.