CASE OF A.K. v. LATVIA
Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award
Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva
6. The applicant was born in 1961 and lives in Rīga Parish. 7. On 18 October 2001 the applicant, who was forty years old at the time, discovered that she was in the fifth or sixth week of pregnancy during a gynaecological examination at A. Hospital. 8. On Tuesday 15 January 2002, in her eighteenth week of pregnancy according to her medical notes (medical record no. 43), the applicant had an appointment with her gynaecologist, Dr L., at A. Hospital. The medical record notes that, during the appointment Dr L. issued a referral for the applicant to undergo an alpha-fetoprotein (“AFP”) test on the following Monday, 21 January 2002. The test checks the level of AFP in a pregnant woman’s blood as an indicator of potential foetal abnormalities. The applicant disputes the authenticity of medical record no. 43 and denies that any referral was made. 9. The applicant did not attend the appointment for the AFP test on 21 January 2002. 10. From February to June 2002 the applicant regularly attended appointments with Dr L. and her general practitioner. 11. On 5 June 2002 the applicant gave birth to a daughter with Down’s syndrome. 12. The applicant was discharged from hospital on 18 June 2002. She claims that a few days later she went to A. Hospital to obtain a copy of her medical records. She was given her medical records and made a copy at the hospital, before returning them. According to the applicant, her copy of medical record no. 43 contained no reference to the 15 January 2002 referral for an AFP test. 13. On 1 July 2002 the applicant complained to the Inspectorate for Quality Control of Medical Treatment (“the MADEKKI”) about the quality of the antenatal medical care provided by Dr L. In particular, she complained that Dr L. had failed to refer her for the AFP test, which would have indicated the risk of foetal abnormality. 14. On 2 July 2002 the MADEKKI requested A. Hospital to forward the applicant’s medical records. 15. On 15 July 2002 the MADEKKI interviewed Dr L. She explained that although the applicant had been referred for the AFP test on 15 January 2002, she had failed to attend because she had been hospitalised. Following her release from hospital there had been no point in carrying out an AFP test since she was by then in her twenty-first week of pregnancy. Dr L. referred to the fact that the applicant had been referred for a genetic consultation in her twenty-fifth week of pregnancy. Dr L. also explained that after the baby had been delivered, she had discovered that the applicant’s eldest son had a mental illness, a fact which the applicant had concealed during her pregnancy. The applicant had further concealed the excessive alcohol consumption of her partner and father of the child. 16. On 25 July 2002, having examined the applicant’s medical records and interviewed relevant doctors, the MADEKKI issued its opinion. It found that although the applicant had been referred for the AFP test, Dr L. had failed to ensure that the test was carried out. This failure was, it said, contrary to Ordinance No. 324 concerning antenatal and prenatal care (see paragraph 48 below). Dr L. was given an administrative fine of twenty-five Latvian lati. 17. On 29 July 2002 the MADEKKI informed the applicant of its finding that she had received antenatal medical care in accordance with national law, save that Dr L. had failed to ensure that she had undergone the AFP test. It noted that AFP screening results could neither confirm nor exclude a congenital foetus abnormality but would rather serve as an indicator for further examinations. It also explained that the applicant bore some responsibility herself as she had failed to inform Dr L. of her eldest son’s illness. Had Dr L. been aware of the illness, she would have arranged for a medical genetic consultation in the first months of the applicant’s pregnancy, thus ensuring a timely diagnosis. Finally, the MADEKKI informed the applicant of her right to apply to the law enforcement authorities within one month of its decision if she was not satisfied with it. 18. On 20 February 2004 the applicant officially requested access to her medical records. An approved copy was issued to her on 23 February 2004. She claims that she subsequently formed the view that the 15 January 2002 entry in medical record no. 43 concerning her referral for an AFP test had been added at a later date. 19. On 20 October 2004 the applicant asked the District Prosecutor’s Office to investigate whether the discrepancies in the two copies of medical record no. 43 amounted to falsification of documents. She also alleged negligence on the part of Dr L. In support of her allegation, she submitted the unapproved copy of her medical records which she claims to have made in June 2002 (see paragraph 12 above). 20. On 16 November 2004 the police interviewed Dr L. She explained that in the seventeenth week of pregnancy she had referred the applicant for the AFP test but the test had not been carried out, for unknown reasons, because the applicant had failed to attend the appointment. Dr L. referred to the applicant’s right to refuse the test. She added that the applicant had concealed the genetic illness of her eldest son. Had his situation been disclosed, Dr L. said that she would have arranged an immediate consultation with diagnosis by the twelfth week of pregnancy. As regards medical record no. 43, Dr L. explained that the entries in the record were made over an extended period of time as examination results were received and further appointments and treatment instructed. She also explained that medical record no. 43 had disappeared in January 2002 and was only recovered at a later date, when it was placed in the reception at A. Hospital outside its working hours. She told the police that it was not in the interests of the medical staff to lose or conceal the record, since it meant that all the medical examinations would have to be carried out again. 21. On 22 November 2004 the police refused to institute criminal proceedings for falsification of records or negligence. The investigators were satisfied that the applicant had been referred for the test but that she had not turned up for the appointment. The investigators also found that there were no technical means available to establish precisely the time when the contested data concerning the referral had been entered in the applicant’s medical file. 22. On 9 December 2004 the applicant appealed the decision. She sought the institution of criminal proceedings for falsification of documents by a group of persons. On 28 December 2004 the District Prosecutor’s Office quashed the decision of 22 November 2004 and ordered further investigation into the disappearance of the applicant’s medical record and the making of the contested entry. 23. In February 2005 further police investigations were carried out. The State Forensic Expertise Bureau confirmed that it did not have the ability to establish, by forensic methods, the date on which the contested entry was made. Dr L. was questioned again and confirmed the disappearance of the medical record in 2002. The applicant’s general practitioner and nurse were interviewed. The nurse told the police that in 2002 the applicant had frequently visited her general practitioner and brought medical record no. 43 with her, in order to record future appointments. The general practitioner had updated the record during her visits and returned it to her. Staff of A. Hospital were also interviewed and confirmed the temporary disappearance of the applicant’s medical record. 24. On 4 April 2005 the police refused to institute criminal proceedings for falsification of documents by a group of persons. 25. On 25 May 2004 the applicant appealed the decision. On 18 July 2005 the District Prosecutor’s Office quashed the decision of 4 April 2005 and again remitted the complaint for further investigation. It noted that the applicant had submitted a non-approved copy of medical record no. 43 and referred to the need to ascertain whether there were witnesses who could testify that the contested entry was missing in June 2002 when the copy was allegedly made. 26. On 30 September 2005, after further interviews with Dr L. and the applicant’s general practitioner, the police again refused to institute criminal proceedings. They concluded that it was not possible to determine whether the information concerning the disputed referral for the AFP test had been missing from the applicant’s medical records in June 2002. 27. The refusal to institute proceedings was upheld by the District Prosecutor’s Office on 19 December 2005. However, on 17 May 2006, following an appeal by the applicant to the Regional Prosecutor’s Office, the latter revoked the decision of 30 September 2005 and instituted criminal proceedings. 28. On 8 June 2006 the police requested forensic tests on medical record no. 43. An expert report dated 7 July 2006 concluded that the medical records were not falsified but that they had been supplemented with new information over an extended period of time. 29. On 12 September 2006 the applicant was informed that the criminal proceedings had been terminated owing to the expiry of the statutory limitation period. 30. Meanwhile, on 16 August 2005 the applicant lodged a claim for damages against A. Hospital. She contended that Dr L. had been negligent as she had not identified the applicant as belonging to a high-risk group and had not referred her for the AFP test. The applicant also alleged that Dr L. had subsequently modified the medical records in order to conceal the failure. She further claimed that Dr L. had not put in place a medical care plan in respect of her pregnancy and was therefore not in a position to provide the applicant with the necessary information on her treatment, in violation of sections 20 and 41 of the Medical Treatment Law (see paragraphs 44 and 47 below). As a result of these failings, the applicant had been prevented from availing herself of her right to agree to or decline the AFP test. She claimed that had she known that the child had a congenital disease, she would have chosen to undergo an abortion on medical grounds. She claimed compensation for pecuniary and non-pecuniary damage, including compensation for lost wages and a lump-sum maintenance award for her daughter. 31. A hearing took place on 20 December 2005. The applicant’s legal representative asked the court to hear the applicant as a witness in order for her to give evidence on the facts of the case. The court rejected the application without providing reasons. However, it granted the defendant’s application for Dr L. to appear as a witness and give oral evidence. 32. On 2 January 2006 the Riga Regional Court (Rīgas Apgabaltiesa) dismissed the applicant’s civil claim. The court held that, as it could not be proved that Dr L. had falsified the applicant’s medical records, the applicant had failed to turn up for the AFP test. It also noted that she had failed to inform Dr L. of her eldest child’s condition. It found that the applicant was not in a high-risk category merely on account of her age, and that the applicant was to blame for the fact that the AFP test was not carried out. It concluded that there was no causal link between the actions of Dr L. and the birth of the applicant’s child. Even though Dr L. had been given an administrative fine for her failure to ensure that the applicant had the AFP test, this was insufficient to prove that Dr L. had been at fault. 33. The applicant appealed. She argued that Dr. L had been obliged to take all medical steps to establish whether her unborn child was healthy. Since she had not done everything required of her in order to discover the child’s genetic abnormality in a timely manner, it had not been possible for the applicant to prevent the birth of a child with a congenital disorder. The applicant argued that the court had erred in finding that she did not belong to a risk group due to her age, since Ordinance No. 324 indicated that pregnant women above the age of 35 should have the AFP test. She also contended that the court had erred in concluding that she had been referred for the test. She maintained that the court’s conclusion that she herself was to blame for the fact the test was not carried out was unfounded since the case file contained no evidence in that regard. Furthermore, she claimed that the court had given no reasons for relying on the medical records used by the MADEKKI instead of the earlier copy of the medical record that she had submitted. In any event, the applicant argued that even if she had been referred for the test, the referral was already too late as on the day allegedly fixed for the test she was already in her nineteenth or twentieth week of pregnancy. She further contended that had she refused to take the test, the doctor would have made a corresponding note in the medical record. As regards her eldest son, the applicant pointed out that Dr L. had never asked her about the health of her other children and explained that her son had developed schizophrenia at the age of twelve. She insisted that there was in her view a causal link between the Dr L.’s failures and the birth of her child and that damages ought to be paid. 34. On 4 April 2007 a hearing took place on 4 April 2007 before the Civil Chamber of the Supreme Court (Augstākās tiesas Civillietu tiesu palāta). The applicant’s legal representatives were unable to attend but the applicant asked the court to proceed in their absence. The applicant made submissions on her own behalf, and answered questions posed by the court. The court heard evidence from a representative of A. Hospital, who explained the system of record-keeping at A. Hospital and the loss of the applicant’s medical record, and from Dr L. Dr L. testified that only an amniocentesis allowed an effective diagnosis of Down’s syndrome. Although the risk of congenital abnormalities increased with age, the fact that the applicant was forty years old was not as such an indicator that she ought to have an amniocentesis, which carried with it the risk of miscarriage. There were no objective medical indications to justify a referral for that procedure in the applicant’s case. Dr L. referred to the applicant’s failure to disclose the condition of her eldest son and to disclose her husband’s alcoholism. 35. On 17 April 2007 the Civil Chamber rejected the applicant’s appeal. It agreed with the first-instance court’s conclusion that applicant’s allegations concerning the alteration of her medical record had not been proven, noting that the copy of the medical record submitted by her was not certified. The court also noted the MADEKKI’s conclusion concerning the applicant’s failure to inform Dr L. of her eldest son’s illness, observing that the “mother’s passport”, which the applicant had at all times, drew attention to the importance of informing the doctor of any diseases suffered by existing children. It referred to Dr L.’s evidence that, had she known of the illness, she would have ordered additional tests and examinations. The court also pointed out that the Medical Treatment Law set out a duty on patients to comply with doctors’ instructions; the applicant was accordingly under a duty to undergo the AFP test which she had been referred. The fact that there was no record in writing of her refusal to take the test was not proof of the fact that she had never been referred for it. 36. Finally, the Court held that Dr L. could not be held responsible for the child’s genetic condition since no causal link could be established between the actions of Dr L. and the child’s condition. It also noted that: “The result of the AFP test ... could neither confirm nor exclude genetic abnormality of a foetus, but would serve as an indication for further examination. Therefore the [applicant’s] allegations that the results of the AFP test would have provided her [with] an opportunity to choose whether to continue with or terminate the pregnancy could not in itself serve as a basis to uphold the claim.” 37. The only shortcoming in the applicant’s medical care had been the failure to ensure that the AFP test was actually carried out. The court noted that the MADEKKI had already fined Dr L. for this omission. 38. As regards the alleged falsification of medical record no. 43, it found that, since the applicant’s medical record was missing at the time of her January 2002 appointment with Dr L., the latter had made her notes on a separate sheet of paper which had been added to the medical record once it had been recovered. The court noted the finding of the MADEKKI that the applicant had been referred for the AFP test and further recorded that the applicant did not dispute that she had attended an appointment with Dr L. on 15 January 2002. It referred to the decision of the police of 30 September 2005 not to institute criminal proceedings because there was no evidence that the medical record had been falsified. It therefore found that the applicant’s account of the reason for the differences in the two copies of her medical records had not been proven to be true. 39. On 7 May 2007 the applicant obtained a copy of the expert report of 7 July 2006 (see paragraph 28 above). 40. The applicant subsequently filed an appeal on points of law. She argued that the Civil Chamber had not assessed correctly whether the failure of Dr L. to ensure that the AFP test was carried out had infringed the applicant’s right to find out about any foetal abnormality. Even though the court had concluded that she had been referred for the AFP test, the judgment did not address whether the referral complied with section 41 of the Medical Treatment Law, i.e. whether she had received all the necessary information about the test (see paragraph 47 below). Further, the applicant submitted that the court should have applied section 23 of the Medical Treatment Law and insisted that any refusal of the treatment should have been in writing (see paragraph 46 below). She also submitted that the court had wrongly interpreted section 25 of the Medical Treatment Law (see paragraph 46 below) by stating that she had been obliged to carry out the AFP, as it had not taken into account the need for free and informed consent before any medical intervention. Finally, she argued that in assessing whether Dr L.’s actions had been wrongful, such as to give rise to damages, the court should have assessed whether the doctor had complied with the applicable rules, including the Ordinance No. 324. The court’s conclusions as to the lack of a causal link were not compatible with the Ordinance, since had Dr L. complied with her legal obligations, the applicant could have found out that the foetus had a genetic disease and could have availed herself of her right to have an abortion on medical grounds, thereby preventing the birth of the child. Accordingly, she maintained, the necessary causal link existed between Dr L.’s wrongful actions and the birth of the child with Down’s syndrome. 41. The applicant also contended that there had been a number of procedural failings before the appellate court. She alleged in particular that it had not assessed her claim for maintenance; and that it had breached the rules in relation to assessment of evidence as it had uncritically accepted the testimony given by the doctor, had attached greater weight to the copy of the medical records submitted by the hospital than to the copy submitted by her, and had relied on the conclusions of the MADEKKI without itself verifying the facts. 42. On 26 September 2007 the Senate of the Supreme Court dismissed the applicant’s appeal. The full text of the judgment was made available on 22 October 2007. The Senate concluded that, contrary to the applicant’s allegations, the appellate court had come to its conclusions about the referral for the test and the applicant’s failure to attend the appointment with due regard for a patient’s right to receive information. Section 23 of the Medical Treatment Law was not applicable to this case as the applicant had simply not shown up for the test. The Senate further noted that applicant’s arguments were based on the premise that she had not been referred to the test whereas the appellate court had found that a referral had been made. Her complaints of procedural flaws were rejected as unfounded 43. Meanwhile, on 1 August 2007 the applicant asked the Senate of the Supreme Court to reopen the civil proceedings on the basis of newly discovered evidence, namely the expert report of 7 July 2006 which she had recently seen for the first time (see paragraphs 28 and 39 above). On 5 December 2007 the Senate dismissed the request.