CASE OF KOROGODINA v. RUSSIA
Violation of Art. 2 (procedural aspect)
Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens
5. The applicant was born in 1931 and lives in Orel. 6. On 21 October 2000 the applicant called an ambulance for her son, who was forty-two years old at the time. He had a fever and was complaining of chest pains. The paramedic examined him, and, assuming that he was suffering from intercostal neuralgia, administered a pain-killing injection. 7. On 22 October 2000 Mr Korogodin was examined by a general practitioner, who believed him to be suffering from pyelonephritis and advised him to go to hospital. At the hospital Mr Korogodin underwent a medical examination including an ECG of his kidneys and liver and an Xray of his lungs. The doctors who examined him confirmed the diagnosis of intercostal neuralgia. Mr Korogodin was discharged from hospital. 8. On 23 October 2000 the general practitioner examined Mr Korogodin again and diagnosed him with osteochondrosis. Subsequently, M., a doctor whom the applicant's family knew, examined Mr Korogodin, diagnosed him with pneumonia and urged him to go to hospital. Upon arrival at the Zheleznodorozhniy Hospital in Orel, Mr Korogodin was taken to an intensive care unit. 9. On 27 October 2000 Mr Korogodin died in hospital. According to the autopsy, the cause of his death was cardiovascular deficiency provoked by pneumonia and purulent pleurisy. 10. On 24 November 2000 and 10 January 2001 the applicant asked the local prosecutor's office to open a criminal investigation into the matter, alleging that the doctors' negligent failure to diagnose her son correctly at the onset of his disease had caused his death. 11. In response to the applicant's complaints, the assistant prosecutor of the town of Orel, conducted an inquiry. Within its framework, the regional department of public health formed a commission which comprised specialists from the medical institutions where the applicant's son had undergone treatment. The commission questioned the doctors who had treated Mr Korogodin and concluded that the doctors had provided competent medical service. 12. On 21 January 2001 the applicant submitted Mr Korogodin's medical history file and X-ray examination results. An additional inquiry ensued. On 24 January 2001 the applicant lodged another complaint with the prosecutor's office. 13. On 6 March 2001 the assistant prosecutor refused to open a criminal investigation against the doctors for lack of corpus delicti. He noted that the death of the applicant's son had resulted from the rapid development of pneumonia coupled with weakened immunity. The assistant prosecutor referred to the findings made by the commission set up by the regional department of public health. The applicant appealed to a superior prosecutor. 14. On 16 April 2001 the regional prosecutor in charge of the investigation quashed the decision of 6 March 2001 and ordered a criminal investigation into the matter. The prosecutor noted, in substance, that the commission had not been impartial. He referred to the commission's findings as inconclusive and contradictory. 15. On 7 May 2001 the applicant was recognised as a victim of the crime under investigation. She was advised of her rights, including the right to submit a civil claim against the hospital. 16. On 19 June 2001 the investigator commissioned a forensic medical expert report to determine whether Mr Korogodin had received proper medical treatment. 17. On 16 July 2001 the investigator found it impossible to identify those responsible and suspended the investigation into the matter. On 4 February 2002 the district prosecutor declared the decision of 16 July unlawful and quashed it. 18. On an unspecified date the forensic medical experts completed the report and submitted their findings to the prosecutor's office. The experts discerned no causal link between Mr Korogodin's death and the treatment administered. 19. On 11 March 2002 the investigator discontinued the criminal proceedings for lack of corpus delicti. He based his findings on the medical expert report and statements made by the doctors who had treated Mr Korogodin. The applicant appealed to a superior prosecutor. 20. On 29 March 2002 the town deputy prosecutor quashed the decision of 11 March 2002. The deputy prosecutor found that the experts had failed to examine the issue of whether the medical treatment that Mr Korogodin had undergone had been adequate. He referred to the experts' statement that a prompt diagnosis at an early stage of a severe disease could prevent a patient's death. He further noted that the medical expert, P., opined that the X-ray examination had not been properly conducted. Finally, the prosecutor indicated which steps the investigator should now take, including, but not limited to, examining the circumstances of the X-ray examination that Mr Korogodin had undergone. 21. On 7 May 2002 the investigator yet again discontinued the criminal proceedings for lack of corpus delicti. 22. On 19 June 2002 the regional prosecutor in charge of the investigation quashed the decision of 7 May 2002 owing to the investigator's failure to fully determine the circumstances of Mr Korogodin' 23. On 7 August 2002 a new report was prepared by a forensic medical expert bureau in Kursk. The experts noted certain errors committed by the doctors prior to Mr Korogodin's committal to hospital. They further opined that he had received adequate treatment in hospital albeit that certain additional measures could have been taken by the hospital's personnel. 24. On 14 January 2003 the investigator found it impossible to identify those responsible and suspended the investigation into the matter. 25. On 21 April 2003 the inter-district prosecutor quashed the decision of 14 January 2003 as unsubstantiated. The investigation was resumed the next day. 26. On 21 May 2003 the inter-district prosecutor discontinued the criminal proceedings for lack of corpus delicti. His findings were based on witnesses' testimonies, including those provided by the applicant and the doctors who had treated Mr Korogodin, and the results of the medical expert reports. The prosecutor concluded that Mr Korogodin had not recovered from previous illnesses which had negatively affected his immune system and the rapid development of pneumonia could not have been prevented in the circumstances. 27. On 31 October 2003 the General Prosecutor's Office of Russia sent a letter to the Orel Regional Prosecutor noting that the investigation into Mr Korogodin's death had not been complete. It was further recommended that a new forensic medical evaluation be commissioned in order to reconcile the differences in the opinions contained in two earlier medical forensic expert reports. 28. On 18 November 2003 the regional deputy prosecutor quashed the decision of 21 May 2003. 29. On 24 December 2003 the investigator commissioned a new forensic medical expert report. 30. On 25 April 2005 the Russian Centre for Forensic Medical Expert Evaluations of the Federal Agency for Public Health and Social Development completed a comprehensive forensic medical expert report. The experts noted that Mr Korogodin had been wrongly diagnosed prior to his committal to hospital. They opined, nevertheless, that the errors in question had not been the cause of his death. Mr Korogodin had died as a result of the “severity, aggressiveness and rapid development of the disease”. Lastly, they did not discern that the doctors and paramedics at the medical institutions providing treatment to Mr Korogodin had failed to duly perform their professional duties. 31. On 6 July 2005 the investigator discontinued the criminal proceedings for lack of corpus delicti on the basis of the witnesses' testimonies and medical expert reports. The applicant appealed. 32. On 2 December 2005 the General Prosecutor's Office of Russia allowed the applicant's complaint and ordered the local prosecutor's office to resume the investigation into the matter. 33. On 12 December 2005 the regional deputy prosecutor found the investigation to be incomplete and quashed the decision of 6 July 2005. 34. On 11 January 2006 the investigator discontinued the proceedings for lack of corpus delicti. The investigator based his findings on statements made by twelve witnesses, including the applicant, the doctors who had treated Mr Korogodin, their superiors and the medical experts, and on medical documents, including three forensic medical expert reports. The applicant appealed. 35. Her complaints were dismissed by the Orel Regional Prosecutor's Office and the General Prosecutor's Office of Russia on 20 January and 11 October 2006 respectively. 36. On 4 March 2004 the applicant brought a civil claim for damages against the medical institutions where her son had undergone medical treatment. She alleged, inter alia, that her son had died due to the doctors' failure to diagnose him correctly. 37. On 21 September 2004 the court commissioned a forensic medical expert report. The report was completed on 28 June 2006. The experts concluded that there was no causal link between the deficiencies in the medical treatment Mr Korogodin had received and his death. They further opined that the medical treatment had not caused any harm to Mr Korogodin's condition. His death had resulted from the pathological development of pneumonia. 38. On 17 April 2006 the Sovetskiy District Court of Orel dismissed the applicant's claims. The court found that the doctors' failure to diagnose Mr Korogodin correctly on 22 October 2000 and a delay in his committal to hospital had not had an adverse impact on his condition. The diagnostics methods and treatment employed by the doctors had been correct but could not have prevented Mr Korogodin's death. The court based its findings on the testimonies given by the applicant, the medical professionals involved in her son's treatment, the four forensic medical expert reports and the materials of the criminal investigation. 39. On 14 June 2006 the Orel Regional Court upheld the judgment of 17 April 2006 on appeal. 40. On 27 January 2004 the applicant sued the Orel Regional Prosecutor's Office for damage caused allegedly by the inadequate and lengthy investigation into her son's death. 41. On 20 May 2004 the Sovetskiy District Court of Orel dismissed the applicant's claims. 42. On 7 July 2004 the Orel Regional Court upheld the judgment of 20 May 2004 on appeal. 43. The relevant provisions on liability provide as follows: Article 66. Grounds for health damage compensation Those liable for causing damage to persons' health shall pay the latter compensation for damage in the amount and pursuant to the procedure as set forth by legislation of the Russian Federation... Article 68. Liability of medical professionals and pharmacists for infringement of persons' rights in the domain of public health In the event of a violation of persons' rights in the domain of public health caused through the negligent failure of a medical professional or a pharmacist to carry out their professional duties and resulting in harm to health or death, compensation for damage shall be recovered in accordance with Article 66... The compensation of the damage shall not excuse the medical professionals and pharmacists from disciplinary, administrative or criminal liability as provided for in [federal and regional] legislation. 44. The general provisions on liability for damage read as follows: Article 1064. General grounds for liability for causing harm “1. Damage inflicted on a person or on the property of an individual... shall be compensated in full by the tortfeasor ... 2. The tortfeasor shall be released from liability to compensate the damage if he proves that the damage was inflicted through no fault of his own ...” 45. Article 109 § 2 of the Criminal Code provides that a person who negligently causes the death of another person through the failure to duly carry out his professional responsibilities, shall be criminally liable and may be sentenced to a restriction of liberty or imprisonment for up to three years with or without a forfeiture of the right to practise the profession during the said period. 46. If criminal proceedings are discontinued at the investigation stage, an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that (a) the alleged offence had not been committed (otsutstvie sobytiya prestupleniya) or (b) the suspect had not been involved in its commission (Article 213 § 4 and Articles 24 § 1 (1) and 27 § 1 (1)). 47. If the defendant is acquitted by the trial court on the ground that (a) the alleged offence was not committed or (b) the defendant was not involved in its commission, the trial court will dismiss the civil claim. If the defendant is acquitted for lack of corpus delicti (Article 24 § 1 (2)), the trial court will disallow the civil claim but it may be lodged again in civil proceedings (Article 306 § 2).