M.P. AND OTHERS v. ROMANIA
Inadmissible
Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicants are Mrs M.P., her husband Mr M.P., and their son M.D.P. They are all Romanian nationals, born in 1971, 1974 and 2003 respectively; they all live in Buzău and were represented before the Court by Mr P. Pop, a lawyer practising in Bucharest. The Romanian Government were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 2. The facts of the case, as submitted by the parties, may be summarized as follows. 3. Mrs M.P., mother of a nine year-old child from a previous marriage, had been informed by doctors that she could no longer conceive naturally; together with her husband, Mr M.P., she decided to have recourse to artificial insemination procedures in order to have a child. The applicants contacted doctor S.P., an obstetrician at the “Prof. Dr Panait Sârbu” Obstetrics and Gynaecology Hospital in Bucharest (hereafter “the hospital”) to that end. They informed the doctor that Mrs M.P.’s first child had been born with a congenital malformation (tibial agenesis, or hemimelia) and asked for further information concerning the risk that the future child could be born with the same condition. They explained to the doctor that if such a risk existed they would not proceed with the insemination. Doctor S.P. assured them that the first child’s situation was exceptional and that there was no risk of another child being born with the same disability. 4. They were then referred to doctor A.V. in order to have the standard procedural tests carried out. They enquired again about the risk of having another baby with the same malformation and about the possibility of running genetic tests in order to rule out this issue. The doctor assured them that the chances of it happening were minimal (1/1,000,000); therefore no other tests were performed. 5. The artificial insemination was scheduled for 19 November 2002 and it resulted in the first applicant’s pregnancy. 6. In the first trimester of the pregnancy the first applicant underwent several tests recommended by doctor S.P., who also referred her to doctor D.A. for further ultrasound scans. She allegedly told the latter about her fears concerning the risk of the baby developing the same malformation as her first child. However, she was reassured each time that everything concerning the development of the unborn child was normal. 7. During one of the ultrasound scans, performed in the twenty-fourth week of pregnancy, doctor E.S., an echographer, informed the applicants that he had noticed a difference between the two legs of the foetus, but reassured them that it was likely that that was an error, as the difference was minor and the foetus did present both a tibia and a femoral bone. This information was conveyed to doctor S.P., who concluded that no special issue arose. 8. The first applicant decided to seek further tests, however. To that aim, she contacted a private clinic, M.R., where on 9 June 2003 she underwent a three-dimensional ultrasound scan, performed by doctor D.A. At the relevant time the applicant was in her thirty-second week of pregnancy. The doctor detected a peculiar position of the toes in relation to the leg (planta în poziţie valg faţă de planul frontal al gambei), reassuring Mrs M.P. nevertheless that the legs of the foetus were normally developed. He further detected foetal distress in the brain (suferinţă fetală la nivel cerebral) and recommended that the applicant contact her obstetrician. After consulting with her obstetrician, on 12 June 2003 the first applicant was hospitalized; Mrs M.P. and the foetus were monitored until 16 June 2003, when she was released from hospital as there were no further indications of foetal distress. 9. On 8 August 2003 the applicant was admitted to hospital for the birth; she was immediately referred to doctor C., who later assisted the applicant during the birth. On 12 August 2003 the applicant gave birth to a baby boy (the third applicant); he presented a malformation of one of his legs that was identical to that of his older brother. 10. Doctor S.P. visited the applicant three days later; referring to the child’s disability, the doctor offered his support in finding an association which could help the applicants financially. 11. Nine months after giving birth to M.-D.P., and despite the doctors’ conclusion that she could not become pregnant naturally, Mrs M.P. discovered that she was expecting a third baby. Together with her husband, she decided to have an abortion, fearing that the third child would be born with the same disability. 12. On 9 May 2005 the applicants brought an action against doctors S.P., D.A., E.S. and A.V., as well as against the hospital, the private clinic M.R., the Ministry of Health and the Romanian State, represented by the Ministry of Finance. On behalf of their younger son, they requested a monthly lifetime allowance of 20,000,000 old Romanian lei (ROL); in their own name, they asked for ROL 5,000,000,000 in compensation for pecuniary and non-pecuniary damage incurred on account of the birth of a disabled child, who needed frequent medical interventions due to his disability. The applicants claimed that the defendants were liable for negligence in performing their medical duties, namely, that the doctors had failed to adequately inform them prior to the artificial insemination of the potential risk that the new baby could be born with the same disability as his older brother; and that they subsequently failed to adequately monitor the development of the foetus and also misinterpreted the results of the ultrasound examinations, telling them that the baby was developing normally and thus misleading them. The applicants reiterated that if they had been aware of the risks involved, they would have not undergone the artificial insemination to begin with, and in any event, they would have decided on an abortion, so as to spare the child of a life of pain and suffering on account of his disability. Referring to “the doctors’ superficiality” in dealing with their case, the applicants highlighted that in spite of the diagnosis according to which Mrs M.P. could no longer become pregnant naturally, she had become pregnant unexpectedly and found herself compelled to have an abortion for fear of having another disabled child. 13. On 7 December 2007 a report containing the conclusions of doctor D.I., an expert in genetics from the National Institute of Forensic Medicine, was adduced as evidence. In reply to the twenty-five questions put by the court, the expert gave her opinion, which its relevant parts held as follows: “The [peculiar] position of the toes in relation to the leg indicate a congenital malformation [question no. 1] ... “The recommended measure [for diagnosing a genetic anomaly of the specified type] is a foetal morphological ultrasound scan, performed in the 20th-24th week of pregnancy. The lower limbs are visible from the 13th-14th week of pregnancy, but the toes only from the 20th week. The period of 20-24 weeks is optimal for visualising the foetal structures and for making the choice of whether to continue or to terminate the pregnancy. [question no. 9] ... Pre-conception diagnosis cannot be performed in the case of tibial agenesis (tibial hemimelia) .... The gene responsible for this condition is not known and the genetic defect potentially responsible for tibial agenesis is beneath the resolution threshold of cytogenetic testing (karyotyping). A prenatal diagnosis can be made by performing an ultrasound scan (foetal morphological ultrasound) in weeks 20-24 of pregnancy. [question no. 25] ... Conclusions In a case where the parents of a child with tibial agenesis have given birth to a second child with the same congenital malformation following a pregnancy resulting from artificial insemination, it would have been advisable for a genetic consultation to be carried out before conception of a second child, together with rigorous ultrasound monitoring of the second pregnancy in order for the specific ultrasound warning signs to be identified in time. It would also have been essential to inform the parents about this anomaly (tibial agenesis) and about the possibilities for treatment, given that surgical orthopaedic treatment is possible.” 14. On 25 January 2008 the Bucharest Court of First Instance rendered its judgment. The court held that due to medical negligence, Mrs M.P. had suffered damage, namely, “the birth of a child with a congenital anomaly”. The court stated that her right to be correctly informed about the state of health of her unborn child had been infringed; implicitly, her right to choose whether or not to give birth to a child suffering from a congenital malformation was equally infringed. 15. The court found doctor A.V. responsible in her capacity as a geneticist for not discharging her duty of care in assessing the applicant’s condition before the artificial insemination, despite having been informed that her first child had been born with a malformation. It concluded that the doctor had failed to proceed to further testing of the applicant in order to clarify her situation and thus inform her about the existing risks associated with a pregnancy, which would have given the parents the opportunity to assess their options. Regarding the responsibility of doctor E.S., the court concluded that he had failed to correctly interpret the results of the ultrasound scan performed during the twenty-fourth week of pregnancy, which had revealed a problem with the foetus’s legs. It further stated that in such circumstances the doctor had been under an obligation to refer the applicant for further testing and to recommend a three-dimensional ultrasound scan. Doctor D.A. was cleared of responsibility on account of the fact that he had been the only doctor to correctly interpret the results of the threedimensional ultrasound scan performed during the thirty-second week of pregnancy, on 9 June 2003 (see paragraph 8 above). As regards doctor S.P., the applicant’s obstetrician, the court found that he was responsible for not recommending the three-dimensional ultrasound scan in time for the malformation to be promptly discovered (weeks 20-24) and also for misinterpreting and ignoring the results of the scan when it was performed in the thirty-second week of pregnancy, in spite of the fact that it had revealed an anomaly in the foetus’s legs. The hospital was held jointly liable with the doctors in respect of the payment of damages. 16. The court referred only to the first applicant in its reasoning; however, it stated in its conclusion that the damages awarded consisted of the payment of a monthly allowance for the third applicant as requested, as well as of compensation for pecuniary damage (in the amount of 2,499.99 new Romanian lei (RON)) and non-pecuniary damage (in the amount of RON 150,000) for both parents. 17. The parties held responsible appealed against the judgment. 18. In its decision of 20 September 2009, the Bucharest County Court reassessed the merits of the case and dismissed the applicants’ action. The court concluded that doctor A.V. had performed her duties in accordance with her professional obligations; the fact that she had not recommended further tests to the applicant did not make her responsible for any damage, in so far as, according to the expert’s conclusions, the only way to detect the malformation was by means of a three-dimensional ultrasound scan performed up to the twenty-fourth week of pregnancy, and that preinsemination tests would not have revealed with certainty the risk of such a condition. As to the responsibility of doctor S.P., the court stated that he could not be held liable in so far as the applicants had been informed that there was a risk of 1/1,000,000 of having a second child with the same malformation. Regarding doctor E.S., the court noted that the problem he had discovered during the ultrasound scan performed on 9 June 2003 concerned the femoral bone, whereas the malformation the third applicant was born with affected the tibia. The court further stated that in any case, a termination of pregnancy could only be carried out up to the fourteenth week, at which stage it was impossible to detect that kind of malformation. 19. The applicants appealed against that decision. 20. On 9 December 2009 the Bucharest Court of Appeal gave its final judgment, partly allowing the appeal. The court examined each of the applicants’ complaints, namely, that the doctors had not informed them of the risk of giving birth to a child with a malformation; that they had not prescribed all the necessary genetic tests and examinations to detect the risk of a genetic malformation; that they had wrongly interpreted the results of the few ultrasound scans the applicant underwent during her pregnancy. 21. The court rejected the first complaint as ill-founded, in so far as the patients had been informed that the risk of having a child with a genetic anomaly was 1/1,000,000. 22. The second complaint was also dismissed in view of the fact that, as revealed by the medical report adduced in the case, no genetic tests or examinations that could have revealed the above-mentioned risk existed. 23. In relation to the third complaint, the court held that according to the evidence in the case, the patient had been closely monitored during her pregnancy, with ultrasound examinations performed every three weeks. However, the medical report concluded that the lower limbs were visible from week 13-14, while the toes could be seen from week 20, an optimal interval therefore being between weeks 20-24. In such circumstances, the court considered that the interpretation of the ultrasound scans performed was problematic, in so far as more attention should have been paid to the particularities of the case and, potentially, more in-depth ultrasound tests should have been prescribed. The damage therefore consisted of the birth of a child with a genetic malformation. 24. From this perspective, the court held that concerning the minor child, there was no causal link between the medical wrongdoing and the alleged damage, in so far as the result of a faultless medical procedure would have been an abortion. Thus, and in view of the importance of the right to life, it could not be considered that it would have been better for the child not to have been born, having regard also to the fact that the malformation in question was not capable of substantially affecting the quality of the child’s life. It transpired from the file that the malformation could be corrected in the future by surgery. 25. The parents, however, had incurred concrete damage, in so far as had they known about the disease, they would have been able to decide whether to keep the child or to opt for an abortion. The court dismissed the claims concerning the pecuniary damage, in so far as the applicants had failed to substantiate it by means of relevant medical bills and documents. Moreover, the state social security system fully covered the costs of the necessary prosthesis for the patient. The court of appeal further awarded Mr and Mrs M.P. RON 20,000 for non-pecuniary damage, to be paid by doctor E.S., ecographer, jointly with the hospital; the doctor was held liable for negligence as he was the only one who could have detected the malformation in time for the applicants to be able to make a decision about terminating the pregnancy. In awarding this amount, the court also took into consideration the fact that the applicants had been informed that the risk of their child being born with a disability was 1/1,000,000, and that they had decided to take that risk. 26. According to the information submitted by the parties, since January 2004 the third applicant has received various prostheses at a general rate of twice per year, meaning that by 2011, he had undergone twenty-two changes of prosthesis. In 2011 he had major surgery, involving an amputation below the knee, which enabled him to be fitted with a more advanced prosthesis in 2012. 27. Article 185 of the Romanian Criminal Code on the illegal causing of abortion read at the relevant time as follows: “1. The act of interrupting the course of pregnancy, by any means, committed in one of the following circumstances:[...] (c) if the age of the embryo has exceeded fourteen weeks; is punishable by imprisonment from 6 months to 3 years. ... 6. Interruption to the course of pregnancy by a physician is not punishable in the following situations: (a) if interruption to the course of pregnancy was necessary in order to save the pregnant woman’s life, [or protect her] health or bodily integrity from a serious and imminent danger that could not have otherwise been removed; (b) in the case in para (1) c), when interruption to the course of pregnancy was necessary for therapeutic reasons, in accordance with legal provisions; (c) in the case in para (2) when the pregnant woman was unable to express her will, and the interruption was necessary for therapeutic reasons, in accordance with legal provisions.” 28. The relevant domestic provisions regarding the civil liability of medical staff are described in Eugenia Lazăr v. Romania, no. 32146/05, §§ 52-54, 16 February 2010. 29. A draft law on healthy procreation and medically assisted human procreation (no. L334/2004) was rejected by the Senate on 9 February 2006 following a decision of the Constitutional Court finding several sections of the draft law to be in breach of the provisions of the Constitution. 30. Law no. 95/2006 on the healthcare reform indicates in its articles 208-210 that the health insurance system is the main provider of healthcare, prosthetics included. 31. Law no. 448/2006 on the protection of persons with disabilities provides in its articles 35-37 that these persons are entitled to have a personal care giver, remunerated with approximately EUR 130 monthly; article 58 further provides that the families having a disabled child are entitled to a fixed monthly allowance of approximately EUR 47; the disabled child would receive twice the amount of a normal child allowance, reaching about EUR 18 a month. “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” “1. Everyone has the right to respect for private life in relation to information about his or her health.” ... “The person who has suffered undue damage resulting from an intervention is entitled to fair compensation according to the conditions and procedures prescribed by law.” “1. The techniques of artificial procreation may be used only if the persons concerned have given their free, informed consent, explicitly and in writing, in accordance with national requirements. 2. Before obtaining such consent, the physician and the establishment using the techniques of artificial procreation must ensure that the persons concerned are given appropriate information and counselling about the possible medical, legal, social and, where relevant, genetic implications of this treatment, particularly, those which might affect the interests of the child to be born.” “The information given during the counselling prior to prenatal genetic screening and prenatal genetic diagnosis must be adapted to the person’s circumstances and be sufficient to reach a fully informed decision. This information should in particular cover the purpose of the tests and their nature as well as any risks which these tests present.” “Where there is an increased risk of passing on a serious genetic disorder, access to preconception counselling and, if necessary, premarital and preconception screening and diagnostic services should be readily available and widely known.” “(a) Any preventive, diagnostic and therapeutic medical intervention is only to be carried out with the prior, free and informed consent of the person concerned, based on adequate information. The consent should, where appropriate, be express and may be withdrawn by the person concerned at any time and for any reason without disadvantage or prejudice.” “Appropriate assessment and adequate management of risk related to medicine, life sciences and associated technologies should be promoted.”