CASE OF SARISHVILI-BOLKVADZE v. GEORGIA
Preliminary objection joined to merits and dismissed (Art. 34) Individual applications;(Art. 34) Victim;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1950 and lives in Batumi. 6. On 16 February 2004 the applicant’s son, G.B., fell off a crane while fixing electric cables. He was admitted to the intensive care unit of Batumi Hospital No. 1 (“the hospital”). His injuries included a fractured skull and brain damage. 7. On 28 February 2004 doctors observed that G.B. had gastrointestinal bleeding and he was given the relevant treatment. On 5 March 2004 he was transferred to a general medical ward as there had been an improvement in his condition. 8. On 6 March 2004 G.B.’s state of health deteriorated and he was transferred back to the intensive care unit because of a bleeding duodenal ulcer. Urgent surgery was performed on 10 March 2004 to stop the bleeding, but he died on 14 March 2004. 9. It appears from the criminal case files that the applicant refused to allow an autopsy of G.B.’s body. 10. On 17 February 2004 the hospital informed the Batumi police that G.B. had been admitted with traumatic injuries. An investigator visited the hospital but was unable to question him in view of his state of health. 11. On 24 March 2004 the investigator returned to the hospital to enquire about the incident of 16 February 2004 (see paragraph 6 above) and was informed that the applicant’s son had died. An investigation was launched into G.B.’s death and the applicant was questioned the following day. 12. On 2 April 2004 the investigator ordered an examination by a panel of experts of the Forensic Bureau under the Ministry of Labour, Health and Social Affairs (“the forensic bureau”) of the Ajarian Autonomous Republic (“AAR”) in order to determine the exact cause of G.B.’s death. The examination was carried out between 6 April and 18 June 2004. The report that followed (“report no. 9-k” or “the first report”) stated as follows: “1. As ... no autopsy was performed upon [G.B.’s] death, the exact cause of his death is unknown to the ... panel [even though] the [related] medical records indicate abdominal bleeding ... 4. We consider that a medical error was committed with respect to G.B.’s treatment in terms of the timing of the surgery, which was caused by an incorrect assessment of the clinical, endoscopy and laboratory data.” 13. On 23 June 2004 a criminal medical negligence case was opened against the relevant doctors of the hospital, in which the applicant was granted victim status. 14. The experts of the forensic bureau who had participated in the panel examination (see paragraph 12 above) were questioned as part of the investigation. The majority confirmed the earlier findings, stating that the therapeutic treatment had been adequate, but an assessment of the delay in surgery was the exclusive competence of a surgeon on the panel. The latter reiterated the findings of the report that the surgery had been delayed in view of several previously registered relapses of bleeding. He added however that this might not have made any difference to the fatal outcome. 15. The head of the expert panel further stated that a conclusive finding on the exact cause of death could not be reached without a forensic examination of the body. 16. On 7 July 2004, relying on the findings of the expert panel, a prosecutor applied to the first-instance court for permission to exhume G.B.’s body in order to determine the exact cause of his death. The request was granted on 8 July 2004. 17. On 14 July 2004 the applicant refused to allow the exhumation despite being warned of its importance for the case. 18. On 2 August 2004 the case was closed as the prosecuting authority was unable to establish a causal link between the alleged medical negligence and G.B.’s death without an exhumation of his body. 19. On 4 August 2004, relying on the findings of the panel of experts in report no. 9-k (see paragraph 12 above) the Batumi city prosecutor wrote to the Minister of Labour, Health and Social Affairs of the AAR. He noted that despite the closure of the investigation, the family’s resistance to allow an exhumation of the body to determine the precise cause of death, and the inability to establish criminal responsibility on the part of the doctors in question, the conclusion of the panel of experts that a medical error had been committed in the course of G.B.’s treatment called for “the implementation of adequate measures to prevent similar violations.” 20. On 27 September 2004, referring to the findings of the prosecutor and the panel of experts in report no. 9-k concerning the medical error committed in the course of G.B.’s treatment, the director of the hospital dismissed the neurosurgeon who had been in charge of G.B.’s treatment (მკურნალი ექიმი) and reprimanded two intensive care specialists and a surgeon. 21. On various dates the applicant asked for the investigation to be reopened. 22. On 1 August 2006 the prosecutor’s office granted the applicant’s request and reopened the investigation under Article 130 § 2 of the Criminal Code (the offence of abandoning a patient in distress, see paragraph 51 below). 23. Several witnesses were questioned, including the then director and deputy director of the hospital, who had considered the family’s resistance as grounds for not carrying out an autopsy upon G.B.’s death. 24. On 21 September 2006 the investigator obtained a second exhumation order from the court in order to determine the exact cause of G.B.’s death. The applicant once again refused to allow implementation. 25. On 4 January 2008 the prosecutor terminated the case as there was no proof causally linking the medical error with G.B.’s death. It does not appear that the applicant appealed against that decision, despite it being amenable to appeal within fifteen days of service upon the parties. 26. On an unspecified date the applicant lodged a claim with the Batumi City Court against the hospital, its medical staff and the Ministry of Labour, Health and Social Affairs of the AAR. She argued that her son’s death had been caused by medical negligence, namely incorrect and delayed treatment of his gastroduodenal bleeding. 27. Between 18 and 28 October 2004, at the request of the Batumi City Court, the Quality Control Inspectorate of the Ministry of Labour, Health and Social Affairs (“the inspectorate”) implemented an inspection of the hospital in connection with G.B.’s death, which was carried out by a panel of experts. They reached the following conclusions (“the second report”): “The institution is carrying out medical practice without a licence in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation. In relation to patient G.B., non-licensed activity was carried out in the following fields: cardiology and clinical transfusion. Out of the 29 doctors who took part in patient G.B.’s treatment, the invited specialists ... in endoscopy and ophthalmology do not hold a licence to practise medicine. A neurosurgeon (currently dismissed from the post) and an intensive care specialist are practising medicine independently despite being ... junior doctors. The doctor ... working as a transfusion specialist is a certified paediatrician ... ... [I]t is evident that the surgery, the sole purpose of which was to definitively determine the cause of bleeding and stop it, was carried out too late. It is difficult to determine whether the scope of the surgery was adequate, as it is impossible to determine the exact location of the ulcer (there is no forensic pathology examination report concerning the body and the two endoscopy specialists reached different conclusions concerning the ulcer’s location). It is also worth mentioning that a pathomorphological analysis of the material obtained during the surgery was not carried out...” 28. An undated study of the relevant medical files, ordered by the inspectorate from a professor of surgery at the Tbilisi State Medical University (“the third report”) noted the difficulty of making categorical claims in the absence of an autopsy of the body. It nevertheless pointed to a lack of adequate supervision by a surgeon, despite the relapses of abdominal bleeding, inadequacies in the choice of treatment, and a lack of appropriate diagnostic measures for the timely detection and possibly even aversion of the otherwise risky surgery. Stressing that it was conventional treatment methods that had been insufficiently explored, the report continued to note that it would be incorrect to make a categorical assertion, such as in the first report, as regards the medical error in relation to the delay in the otherwise high-risk surgery. 29. On an unspecified date two experts of the forensic bureau gave statements to the court and confirmed the findings of the first report that a medical error had been committed in terms of the delay in surgery. They further indicated that the cause of G.B.’s death, according to the medical records, was gastroduodenal bleeding which could have been averted by timely and adequate medical treatment. 30. On 20 January 2006, relying on the expert reports and the medical documentation available in the case files, the Batumi City Court ruled in favour of the applicant. It concluded that the doctors of the hospital had been responsible for a medical error resulting in the patient’s death. It further noted that the participation in the patient’s treatment of doctors not holding the appropriate medical licences reinforced the conclusion that he had not been offered adequate medical care. The court took the decision of the hospital director of 27 September 2004 dismissing the neurosurgeon in charge of G.B.’s treatment and reprimanding two intensive care specialists and a surgeon (see paragraph 20 above) as acknowledgment that medical negligence had been committed in the course of G.B.’s treatment. 31. The applicant was awarded 2,756 Georgian laris (GEL, approximately 1,070 Euros (EUR)) in respect of pecuniary damage. Relying on section 10 of the Patient Rights Act (see paragraph 46 below) the court also awarded non-pecuniary damages in the amount of GEL 6,000 (approximately EUR 2,331). As the contract concerning G.B.’s treatment had only been concluded with the hospital, the latter was found to be the only appropriate respondent and was accordingly ordered to pay the corresponding amount. Both the applicant and the hospital appealed, disagreeing with the court’s assessment of the facts and the scope of the award. 32. On 9 February 2007 the Kutaisi Court of Appeal upheld the lower court’s reasoning. It noted as follows: “Based on an analysis of the evidence before it, the appellate court concludes that in the course of Mr G.B.’s treatment in [the hospital] the medical negligence of the medical staff (insufficient attention towards the patient, misdiagnosis) caused harm to a person’s health and eventually caused the patient’s ... death.” 33. The appellate court continued to note that: “In addition to establishing that harm was caused to a person’s health as a result of the medical negligence of the [hospital] staff, it can also be established from the case files that [the hospital] was carrying out unlicensed activities in a number of medical fields and at the same time some of the medical staff did not have authorisation to practise medicine independently, in violation of the requirements of the [relevant legislation]...” 34. The Kutaisi Court of Appeal further found the hospital to be the only appropriate respondent to pay the damages in respect of the medical negligence of the doctors. As regards who should be held responsible for the hospital and its doctors operating without the necessary licences, it was noted that: “The Ministry of Health of the AAR cannot be held responsible in the present case ... for [the hospital] operating in certain medical fields without the requisite licences considering that, in accordance with section 54 of the Health Care Act, the issuance of such licences is [the exclusive competence] of the Ministry of Health of Georgia. Accordingly, the claim for ... pecuniary and non-pecuniary damages with respect to the Ministry of Health of the AAR is groundless.” 35. The appellate court upheld the lower court’s award of nonpecuniary damages and increased the amount of pecuniary damages to GEL 6,953 (approximately EUR 2,701). 36. Both parties appealed, disagreeing with the court’s assessment of the facts and the scope of the award. 37. On 14 May 2008 the Supreme Court adopted a decision without holding an oral hearing. Referring to the evidence available in the case files, the court found that despite the fact that the exact cause of death could not be determined without an exhumation of the body, the case files confirmed that gastroduodenal bleeding was the cause of death and that a medical error had been committed in terms of the surgery and an incorrect assessment of the various data. 38. The Supreme Court further upheld the lower courts’ findings that the hospital had been carrying out unlicensed medical activities and noted as follows: “It is confirmed ... that [the hospital] was carrying out unlicensed medical activities in the following fields: cardiology, plastic and reconstructive surgery, proctology, urology, paediatrics, epidemiology, clinical transfusion and expert assessments of temporary incapacitation. Unlicensed medical activities performed in respect of Mr G.B. were in the following fields: cardiology and clinical transfusion. Of the medical staff invited to treat ... Mr G.B. ... the endoscopy specialist and ... an ophthalmologist did not have a certificate [authorising them] to practise medicine. [Those] appointed as junior doctors ... the neurosurgeon (currently dismissed) and ... the intensive care specialist were practising medicine independently. The doctor ... certified as a paediatrician was working as a transfusion specialist. The Court of Cassation upholds the views of the appellate court that this gave rise to a violation of ... the Health Care Act and ... the Medical Practice Act.” 39. The Supreme Court noted that the Ministry of Health of Georgia was the entity responsible for issuing licences to medical institutions and that the applicable legislation did now allow medical institutions and individual doctors to practise medicine without requisite licences (see paragraphs 4445 below). It did not elaborate on whether responsibility could be attributed to the respondent Ministry of Health of the AAR. 40. The award of pecuniary damages in the amount of GEL 6,953 (approximately EUR 2,701) was upheld. 41. As regards the question of non-pecuniary damages, the Supreme Court found that domestic law did not entitle the applicant to receive an award for non-pecuniary damage for the death of her son. In particular, it observed as follows: “Under Article 1007 of the Civil Code, harm caused to a person’s health during his or her treatment at a medical institution (a result of surgery or misdiagnosis etc.) shall be compensated on a general basis. In accordance with Article 413 of the Civil Code, monetary compensation for non-pecuniary damage may be requested only in the cases expressly provided for by law, in the form of reasonable and fair compensation. The Civil Code does not define moral (non-pecuniary) damage... Under Article 413 of the Civil Code, not all types of moral harm (mental suffering) shall be compensated, even if there is no doubt as to its existence, only those for which compensation is expressly provided for by law... Accordingly, in accordance with the practice of the Supreme Court of Georgia, non-pecuniary damage resulting from the infringement of the right to life of a person’s husband, child or other relative shall not be compensated as it is not expressly provided for by law...” 42. The Supreme Court disagreed with the lower court’s interpretation that the right to claim non-pecuniary damages under section 10(a) of the Patient Rights Act also applied to the death of a relative, and noted that that right was strictly personal. The Supreme Court therefore rejected the applicant’s claim for non-pecuniary damages, noting that: “It is undisputed that a parent is subjected to moral pain as a result of the death of a young child, but it shall not be compensated considering that it is not expressly provided for by the law in force.”