CASE OF ELENA COJOCARU v. ROMANIA
Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations) (Substantive aspect);Non-pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1953 and lives in Roman. 6. The applicant’s daughter was monitored during her pregnancy by Dr I.M., a gynaecologist working at the Suceava County Hospital. She was examined on a monthly basis and her pregnancy developed normally. 7. On 8 October 2001, Dr I.M. performed a routine check-up on the applicant’s daughter when she was eight months pregnant. According to the applicant, on that occasion Dr I.M. informed her daughter that she needed to be hospitalised for further investigations because an imminent premature birth was suspected. 8. On the same date the applicant’s daughter was admitted to hospital with the diagnosis of imminent premature birth and sub icterus of unknown aetiology. 9. On 9 October 2001 the applicant’s daughter was examined and blood samples were collected because it was suspected that she was suffering from viral hepatitis and an internal condition. She was also suffering from pain in the lumbar region and food poisoning was suspected because she had stated that she had eaten mushrooms picked from the forest. She was treated with Duvadilan (a vasodilator, prescribed for peripheral vascular disease associated with cerebrovascular insufficiency and premature labour) and other medication. According to the applicant, as a result of this treatment large ecchymoses caused by the rupture of blood vessels appeared on her daughter’s legs and abdomen. 10. On the night of 9 to 10 October 2001 the medical condition of the applicant’s daughter worsened. 11. On 10 October 2001 the applicant’s daughter was transferred to the intensive care unit and her condition continued to deteriorate. 12. According to the applicant, after repeated requests from her and her son-in-law, Dr I.M. agreed to contact Dr D.D. from the Cuza-Vodă Clinic located in Iaşi. Dr D.D. was a university professor. When he received information about the patient’s condition and treatment, Dr D.D. diagnosed the applicant’s daughter with Hellp syndrome (an exceptionally serious prenatal condition) and asked Dr I.M. to perform an emergency C-section in order to save the mother’s life. 13. According to the applicant, Dr I.M. refused to perform the emergency C-section, but eventually agreed that the applicant’s daughter could be transferred to the Cuza-Vodă Clinic in Iaşi. 14. The applicant’s daughter was transferred by ambulance to Iaşi, 150 kilometres away from Suceava, unaccompanied by a doctor. Her condition worsened during the transport. 15. She was admitted to the Cuza-Vodă Clinic in a coma, with the diagnosis of Hellp syndrome. An emergency C-section was performed thirty minutes after she arrived at the hospital. She died ten minutes after the surgery from cardiac arrest, despite resuscitation manoeuvres. The applicant’s granddaughter died on 12 October 2001 from cardiac arrest, despite resuscitation manoeuvres. 16. On 10 October 2001 the Iaşi Police Department initiated of its own motion a criminal investigation into the death of the applicant’s daughter. They carried out an examination of the body, took photographic evidence and they interviewed Dr C.N., who had assisted Dr D.D. during the surgery, as well as the applicant’s son-in-law. 17. On 12 October 2001 a post-mortem report was produced in respect of the applicant’s daughter’s and granddaughter’s deaths at the Iaşi Police Department’s request. It concluded that the cause of the applicant’s daughter’s death had been cardio-respiratory and hepatic-renal insufficiency with brain hypoxia. In addition, the applicant’s granddaughter’s death had been caused by lung and brain hypoxia. 18. On 27 March 2002, the Iaşi Forensics Institute produced a forensic necropsy report. It noted amongst other things that according to the serology examination report no spores of poisonous mushrooms were found. It concluded that the death of the applicant’s daughter was pathological and was caused by hepatic-nephritis and generalised haemorrhagic vasculopathy, with cardio-respiratory and circulatory insufficiency. In addition, the assessment of the medical assistance provided to the victim during pregnancy and upon giving birth had to be made, after medical documents were adduced, by a review commission (comisia de avizare) composed of obstetrics and gynaecology experts. 19. On 30 May 2002, the Iaşi Forensics Institute, sitting as a review commission, informed the Iaşi Police Department that they approved the conclusions of the forensic necropsy report of 27 March 2002 as scientifically grounded and based on the medical data included in the report. In addition, it found that there had been no omissions in the techno-medical treatment of the victim (în atitudinea tehnic-medicală față de victimă nu se constată omisiuni). 20. On 6 February 2002, the applicant’s son-in-law lodged a criminal complaint, with no civil claims, with the Iaşi Prosecutor’s Office, requesting an investigation into his wife’s and daughter’s deaths following his wife’s admission to the Cuza-Vodă Clinic in Iaşi. His complaint was registered on 12 February 2002 with the Iaşi Prosecutor’s Office under criminal file no. 670/P/2002. 21. On 27 March 2002, the applicant’s son-in-law lodged a second criminal complaint, with no civil claims, with the General Prosecutor’s Office attached to the Court of Cassation (“the General Prosecutor’s Office”) against the medical personnel of the Suceava County Hospital and the Cuza-Vodă Clinic in Iaşi. He relied on Article 178 (2) of the Romanian Criminal Code, and argued that the medical personnel had been medically negligent. In addition, he contended amongst other things that the criminal investigation lacked the required speediness. The complaint was registered on 23 April 2002 with the Iaşi Prosecutor’s Office under criminal file no. 2294/P/2002. 22. By an order of 26 July 2002 the Iaşi Prosecutor’s Office decided to join the criminal files nos. 670/P/2002 and 2294/P/2002 and not to open criminal proceedings (neînceperea urmăririi penale) in the case. It held, on the basis of the medical evidence, the forensic necropsy report and the approval of the review commission of 30 May 2002, that the death of the victim had had natural causes and had not been induced by any medical error. Subsequently, the order was notified to the applicant’s son-in-law and he challenged the order before the superior prosecutor. 23. On 31 July 2002, the applicant’s son-in-law challenged the order before the Prosecutor General’s Office. His complaint was subsequently referred to the Iaşi Prosecutor’s Office. 24. On 30 September 2002, the superior prosecutor dismissed the applicant’s son-in-law’s challenge to the order of 26 July 2002. 25. On an unspecified date in 2002, the applicant’s son-in-law lodged a criminal complaint against Dr I.M. with the Suceava Prosecutor’s Office for involuntary manslaughter following the deaths of his wife and daughter. The complaint was registered under criminal file no. 735/P/2002. 26. On 8 January 2003 the Suceava Prosecutor’s Office informed the applicant’s son-in-law that the criminal investigation concerning Dr I.M. was pending; that he would be heard after the medical authorities had submitted the relevant medical and forensic documents; and that once the investigation had ended he would be notified of the outcome. 27. On 22 January 2003 the applicant’s son-in-law was heard in respect of the circumstances of his wife’s death. 28. On 16 May 2003 the Suceava Police Department asked the Iaşi Forensics Institute to help them clarify certain aspects of the case and to explain: (a) if Dr I.M. had acted correctly by hospitalising the patient and by giving her the treatment he did; (b) if the treatment with Duvadilan was appropriate for the patient’s condition and if the treatment had influenced the deterioration of her condition; (c) what were the possible causes of the patient’s death occurring soon afterwards; (d) what would have been the patient’s chances of survival, given her diagnosis, if the surgery had been performed as soon as her condition had deteriorated. 29. On 16 May and 21 August 2003, Dr I.M. was heard in respect of the circumstances of his patient’s death. 30. On 10 June 2003 the Iaşi Forensics Institute informed the Suceava Police Department that given his patient’s diagnosis Dr I.M. had had a duty to carry out haemolysis and other blood tests in order to identify a state of pre-eclampsia, given that the patient had been hospitalised with sub icterus. In addition, the prompt treatment recommended in case of suspicion of Hellp syndrome would have been the immediate evacuation of the pregnancy in order to avoid aggravation of the hepatic and vascular lesions. Furthermore, with careful monitoring of the mother and of the foetus as well as prompt treatment, the deaths might have been avoided. The fact that the patient reached the Cuza-Vodă Clinic in Iaşi in a serious condition suggested inadequate monitoring. The absence of a diagnosis for three days aggravated the patient’s condition. Given the doctor’s aforementioned duties, he should have been aware of the evolution of a state of preeclampsia, and he was obliged to exhaust all the available remedies to avoid it and treat it. The extremely low level of thrombocytes in the patient’s blood in Suceava was an important aid to a suspicion of this type of complication and an indication that prompt intervention was necessary. 31. On 25 August 2003, following Dr I.M.’s objections, the Suceava Police Department reiterated before the Higher Forensics Commission attached to the National Forensics Institute in Bucharest (“the Higher Forensics Commission”) the same questions raised before the Iaşi Forensics Institute on 16 May 2003, and asked it to help them clarify those aspects of the case and to provide explanations. 32. On 12 January and 8 March 2004, the Suceava Police Department asked the Higher Forensics Commission to provide its conclusions in respect of their request from 25 August 2003. It emphasised that the conclusions were necessary to solve the case, and that the victim’s family had complained repeatedly before the domestic authorities about the lack of promptness of the criminal investigation. 33. On 29 January 2004 the applicant complained before the superior prosecutor attached to the Suceava Prosecutor’s Office that the criminal investigation lacked promptness and had failed to clarify the circumstances of the victims’ deaths. She stated that the last written notification received concerning the case had been the information note of 8 January 2003. She also requested to be informed of the outcome of the investigation. 34. On 6 February 2004 the Suceava Police Department informed the applicant that the Higher Forensics Commission had been asked to produce a forensic expert report in the case. The applicant was also informed that as soon as the Higher Forensics Commission’s report was available a lawful solution would be issued in respect of the case and that she would be notified about it. 35. On 23 April 2004 the Higher Forensics Commission approved the note (avizul) produced by the Iaşi Forensics Institute on 10 June 2003 with additional explanations. In particular, it noted amongst other things that while she was in hospital the applicant’s daughter stated that she had eaten forest mushrooms. At the time there was another patient in the hospital suffering from mushroom poisoning. This caused her medical condition to be blamed on the mushrooms, which delayed the Hellp syndrome diagnosis. It also noted that during the applicant’s hospitalisation on the intensive therapy unit the applicant’s daughter condition worsened. Dr D.D. was contacted by phone and he suggested that the pregnancy should be evacuated. Given the patient’s serious condition and the local intensive therapy possibilities (posibilitățile locale de terapie intensivă), in order to solve the case, Dr D.D. was contacted and he accepted that the patient be transferred to Iaşi. It further noted that according to the post-mortem report the patient had displayed symptoms of hepatic-nephritis and generalised haemorrhagic vasculopathy and subsequent cardio-respiratory insufficiency. It concluded that the actions of the Suceava Hospital’s staff could be explained from a medical standpoint, in the context of the patient’s anamnesis and given that according to the information available and on the basis of the patient’s symptoms they could have also concluded that the patient’s condition had been caused by mushroom poisoning, and not by Hellp syndrome as turned out to be the case. There were similarities in the symptoms of the two medical conditions. 36. By an order of 4 May 2004 the Suceava Prosecutor’s Office decided not to open criminal proceedings against Dr I.M. for involuntary manslaughter, on the ground that such an unlawful act had not taken place. 37. On 13 December 2007 the applicant requested information from the General Prosecutor’s Office about the status of the criminal investigation and the measures taken in the case. She also accused the authorities investigating the case of procrastination and of waiting for Dr I.M.’s criminal liability to become time-barred. 38. On 13 August 2008, the Suceava Prosecutor’s Office informed the applicant that the criminal investigation against Dr I.M. had been terminated by the order of 4 May 2004, and that the aforementioned order had been communicated to her son-in-law. Also, it noted that the same information had been communicated to the applicant on 6 February 2008. 39. On an unspecified date, the applicant challenged the order of 4 May 2004 before the superior prosecutor attached to the Suceava Prosecutor’s Office. 40. On 1 September 2008, the superior prosecutor attached to the Suceava Prosecutor’s Office dismissed the applicant’s challenge. 41. On 26 September 2008, the applicant challenged the orders of 26 July and 30 September 2002 as well as those of 4 May 2004 and 1 September 2008 before the Suceava County Court. 42. On 12 November 2008 the Suceava County Court declined jurisdiction to examine the case in favour of the Suceava District Court, on account of the nature of the offence under investigation. 43. On 25 November 2008, the applicant lodged a request with the Court of Cassation seeking the transfer of the file to a different district court. 44. On 4 February 2009, the Court of Cassation allowed the applicant’s request and ordered the transfer of the file for examination to the Iaşi District Court. 45. On 22 May 2009 the file was registered with the Iaşi District Court. 46. By a judgment of 20 November 2009, the Iaşi District Court allowed the applicant’s and her son-in-law’s challenge against the order of 4 May 2004, cancelled the order, and referred the file back to the prosecutor’s office for criminal proceedings to be opened against Dr I.M. for involuntary manslaughter. The challenge to the order of 26 July 2002 rendered by the Iaşi Prosecutor’s Office was dismissed as lodged out of time. 47. The court considered that the criminal investigation had not been complete, and that additional evidence was needed. It held that the decision not to open criminal proceedings had been based on the two forensic expert reports, but forensic expert reports had in fact not been asked for by the investigating authorities and had not been produced in the case. The document produced on 10 June 2003 was in fact a note of the Iaşi Forensic Service in response to the investigating authorities’ request for clarification of some aspects of the case. The aforementioned documents did not have the content of a forensic expert report produced according to law. The same considerations applied to the document issued by the Higher Forensic Commission on 23 April 2004. 48. According to the court, a forensic expert report was essential evidence in cases of suspected involuntary manslaughter and it was required when medical negligence had supposedly been the cause of death. Also, the content of the Iaşi Forensic Service’s note of 10 June 2003 which indicated a possible medical error by Dr I.M. made a forensic expert report even more necessary. 49. The court considered that essential aspects of the case needed to be clarified, namely to establish the cause of death and to examine whether Dr I.M. had administered medical treatment in accordance with his professional obligations, and, if such treatment had been inappropriate, whether this had had any causal link with the deaths of the applicant’s daughter and grand-daughter. In addition, the question of whether the applicant’s daughter had eaten forest mushrooms had not been entirely clarified. Dr I.M.’s statement that the applicant’s daughter had eaten the aforementioned mushrooms had not been confirmed or rebutted by any other evidence. The information concerning the consumption of mushrooms found in the clinical observation chart was also added there by Dr I.M. Furthermore, the reasons why the applicant’s daughter was not accompanied by a doctor during her transfer by ambulance remained unclear. Consequently, the court ordered a forensic expert report to be produced which would establish whether: (a) the doctor had been diligent enough to correctly establish the diagnosis; (b) the actual diagnosis had been established on the basis of the symptoms and the investigations made in the case; (c) the correct diagnosis could have been established on the basis of supplementary tests and examinations which should have been performed; (d) the medical treatment had been appropriate; (e) the medical intervention should have been performed at the Suceava County Hospital; (f) the applicant’s daughter’s health had deteriorated during her transfer to the clinic in Iaşi because she was not assisted by a doctor throughout the transportation; (g) any of the aspects above, or others, had any causal link with the death of the applicant’s daughter and her new born granddaughter. If the expert report established a causal link between the death and the fact that the transfer by ambulance had not been done with a doctor present, the reason why the patient had not been accompanied by a doctor and the identity of those responsible should be established. Consequently, the medical staff responsible for the transfer by ambulance should be heard. The court also ordered that the notes on the clinical observation chart should be checked for accuracy against the doctor’s statements regarding the consumption of forest mushrooms, and accordingly the victim’s mother and husband should be heard. 50. The Iaşi Prosecutor’s Office lodged an appeal on points of law (recurs) against the judgment. 51. On 30 March 2010, the Iaşi County Court dismissed the Iaşi Prosecutor’s Office’s appeal on points of law and upheld the judgment of the district court. 52. By an order of 21 December 2010, the Suceava Prosecutor’s Office decided not to open criminal proceedings against Dr I.M., on the ground that his criminal liability had become time-barred. 53. The applicant challenged the order before the superior prosecutor. She argued amongst other things, that the investigating authorities had delayed the investigation of the case, although she had repeatedly asked for a speedy investigation. Also, she had not been notified without undue delay of the outcome of the criminal investigation, although on 6 February 2004 the Suceava Police Department had informed her that she would be notified about the outcome of the investigation. 54. On 1 February 2011, the superior prosecutor attached to the Suceava Prosecutor’s Office dismissed the applicant’s challenge and upheld the order of 21 December 2010. It held amongst other things that the proceedings had not been abandoned by the authorities, since they had finished the investigation on 4 May 2004. The length of proceedings had been affected by the forensic expert reports, the last one being produced on 23 April 2004. 55. The applicant challenged the order before the Iaşi District Court. 56. On 22 April 2011, the Iaşi District Court declined jurisdiction in the case in favour of the Suceava District Court. 57. On 21 July 2011, the file was registered with the Suceava District Court. 58. On 21 September 2011, the Suceava District Court considered that only the Iaşi District Court was competent ratione loci to examine the case. Consequently, it referred the case to the Court of Cassation to examine and decide on the conflict of competence between the two district courts. 59. On 25 January 2012, the Court of Cassation decided that the Suceava District Court was competent to examine the case. 60. On 5 April 2012, the file was registered once again with the Suceava District Court. 61. By a final judgment of 6 June 2012 the Suceava District Court dismissed the applicant’s action as ill-founded and upheld the prosecutor’s office’s order. It held that according to the relevant criminal law provisions and given the nature of the offence he had been suspected of, Dr I.M.’s criminal liability had become time-barred eight years after the unfortunate event. The statute of limitations had not been suspended or interrupted by any act carried out in the case that had to be communicated to the accused (ȋnvinuitului) or to the defendant (inculpatului). Criminal proceedings against Dr I.M. had not been opened and therefore he had not been considered either an accused or a defendant, as the investigation against him had been carried out at the preliminary investigation (acte premergătoare) stage of the proceedings. 62. The court considered that the applicant’s argument that an expert medical report could be requested only after a criminal investigation had been opened was not supported by any legal provision. Also, it could not be accepted that the running of the statutory limit had been stopped or suspended, either by the request for a medical expert report to be produced or by the judgment of 20 November 2009. The judgment of a court quashing an order of the prosecutor’s office to discontinue a criminal investigation was not one of the lawfully permissible reasons to suspend the running of the statutory limit. 63. The court also held that the Suceava Prosecutor’s Office had been competent to investigate the case. The fact that the Court of Cassation had transferred the case for examination to a different district court would not have justified an investigation of the case by a different prosecutor’s office from the one which had initially investigated the case, once the examining court had referred the case back to the prosecutor. Furthermore, the prosecutor was legally bound to open criminal proceedings only if, after the evidence indicated by the court was adduced to the file, it did not appear that there were circumstances that would impede it. Also, even if the prosecutor’s office had taken into account the applicant’s granddaughter’s death and had requalified Dr I.M.’s acts from involuntary manslaughter to aggravated involuntary manslaughter and the maximum penalty had been increased by three years, the offence would still have been time-barred. 64. The applicant appealed on points of law against the judgment. 65. On 26 September 2012 the Suceava Court of Appeal dismissed as inadmissible the applicant’s appeal on points of law, on the ground that the domestic legislation did not allow a second level of jurisdiction in respect of court proceedings initiated against the prosecutor’s office’s orders or decisions. 66. On 16 May 2002, following Dr I.M.’s request, the Professional Jurisdiction Commission attached to the Suceava County College of Doctors (Comisia de Jursidicţie Profesională a Colegiului Judeţean al Medicilor Suceava) established that there were no elements to suggest medical error or other deficiencies in the medical treatment and investigations provided to the applicant’s daughter at the Suceava County Hospital. Her illness had been identified promptly once she was hospitalised, and she had been transferred to intensive care and afterwards to Iaşi. However, the seriousness of her illness led to her death. In addition, there had been no other case before the Romanian College of Doctors in which Dr I.M. had been accused of medical error or breaches of the code of medical ethics. 67. On 30 May 2002, the Suceava County College of Doctors validated the Professional Jurisdiction Commission’s decision.