CASE OF ASİYE GENÇ v. TURKEY
Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Guido Raimondi;Helen Keller;Jon Fridrik Kjølbro;Paul Lemmens;Robert Spano
4. The applicant, Ms Asiye Genç, was born in 1976 and lives in Burdur. 5. On 30 March 2005 the applicant, who was pregnant and in pain, was taken by her husband, Mr Bülent Genç, to the Gümüşhane public hospital. 6. At about 11 p.m. on 31 March 2005 the applicant gave birth by Caesarean section to a boy (Tolga Genç), who – at 36 weeks’ gestation –was premature and weighed 2.5 kg. 7. Shortly after his birth, Tolga began showing signs of respiratory distress. 8. As there was no suitable neonatal unit in the Gümüşhane public hospital, the doctors decided to transfer the baby to the Karadeniz Teknik Üniversitesi Farabi public hospital (“KTÜ Farabi”), located in Trabzon, 110 km away. 9. On 1 April 2005 at around 1.15 a.m. the KTÜ Farabi public hospital refused to admit Tolga on the grounds that there were no places available in the neonatal intensive care unit. 10. Around 2 a.m. Tolga was transferred to the Trabzon Medico-Surgical and Obstetrics Centre (“TMOC”). There, the duty doctor explained to Mr Genç that there were no incubators available and advised him to return to the KTÜ Farabi public hospital, which the father had no choice but to do. 11. On their arrival, the doctors at the KTÜ Farabi public hospital again argued that they were unable to admit the premature baby, owing to a lack of available places in the neonatal unit. 12. A fresh attempt was then made to drive Tolga to the TMOC. 13. Towards 3.30 a.m., he died in the ambulance, which he had apparently never left throughout this sequence of events. 14. On 6 April 2005 Mr and Ms Genç filed a complaint. 15. In particular, they called for the conviction of doctors K.M. and T.Ö. from the KTÜ Farabi public hospital. 16. Two investigations, one criminal and the other administrative, were opened. 17. In the context of these investigations, several witness statements were taken. The relevant passages read as follows: The deceased’s relatives: The applicant: “My pregnancy was progressing normally. The doctors preferred a birth by Caesarean section on account of the baby’s position. The birth had initially been scheduled for 25 April 2005, but during the night of 30 March 2005 I had pains, and the baby was born by Caesarean section the next day. I don’t know what happened after that. I was told that the baby had been transferred to another hospital on account of a respiratory problem, but that he had not been admitted because there were no available places, and that he died in an ambulance, in the garden of a hospital, without a doctor taking the trouble to care for him. I want those responsible for my son’s death to be punished.” Mr Genç: “My son was born prematurely at the Gümüşhane public hospital. The doctors decided to transfer him to another hospital with better equipment. The KTÜ Farabi hospital did not admit him owing to a lack of places. He was also refused admission to the Trabzon Medico-Surgical and Obstetrics Centre, for the same reasons. Instead of caring for my son, the doctors wasted time with administrative formalities. They did not even take the trouble to examine him, although it was an emergency situation. They ought to have diagnosed and treated him. We fought for four hours for my son to be seen by a doctor, but no hospital would agree to admit him. After several trips back and forth between hospitals, he died in an ambulance, in a hospital garden. Had my son been admitted to hospital in time, he would not have died. The persons responsible must be punished.” Ö.B.: “Mr Genç is a friend. I accompanied him on the evening of the incident. We followed behind the ambulance in a car. At the KTÜ Farabi hospital, the duty paediatrician, Ms T.Ö., was annoyed that the transfer had been carried out without any prior checks that there was indeed a place available at the hospital. She paid no attention to the baby. She was busy with the administrative side of things and asked for documents proving that there were in fact no places in the other hospitals. She first called the Trabzon Medico-Surgical and Obstetrics Centre, then the Giresun public hospital, to check. She told us that there were indeed places at the Trabzon Medico-Surgical and Obstetrics Centre, but that the duty doctor had simply not wished to be disturbed. She advised us to request an official signed document stating that there were no places available in the hospital. She added that if the doctors at the Trabzon Medico-Surgical and Obstetrics Centre were confronted with such a request, they would certainly change their attitude, find a place and agree to admit the child. When we went to the Trabzon Medico-Surgical and Obstetrics Centre, doctor K.B. told us that there were no places available and that they could not take the child into their care. Instead of looking after the child, who needed urgent medical assistance, he preferred to spend time drawing up a document stating that there were no places in the hospital. 45 minutes were lost in this way. After numerous back-and-forth trips between hospitals, the child ended up having a heart attack. Treatment by the emergency doctor was not enough to save him. Nobody wanted to take charge of the child. No emergency doctor examined him. They all refused to admit him and tried at any cost to transfer him to another hospital. This indifference towards a child who required emergency medical killed him.” The medical staff: O.Ü.: “I work as a gynaecologist and obstetrician at the Gümüşhane public hospital. Ms Genç’s Caesarean section proceeded normally. We handed over the child to the paediatrician after the birth. He was crying. I don’t know what happened after that, since I continued with the operation.” E.K.: “I work as a midwife in the Gümüşhane public hospital. Ms Genç gave birth to a boy. The child was showing no anomalies when I took him in my arms. Suddenly, for a reason I don’t understand, he had difficulty breathing. Doctor N.A. stepped in right away. The child was intubated. He was transferred to another hospital by ambulance.” N.A.: “I work as a paediatrician at the Gümüşhane public hospital. I saw the child about five minutes after his birth. I intervened as a matter of urgency, since he was not breathing correctly and his pulse was weak. Once his condition had stabilised, we organised his transfer to a better equipped hospital. I had been told that there was a place available at the KTÜ Farabi hospital. The child was transferred by ambulance and he was intubated during the transfer.” N.S.: “I work as an anaesthetist at the Gümüşhane public hospital. Ms Genç gave birth by Caesarean section to a 36-week-old premature baby. Shortly afterwards, the midwife told us that the child had breathing difficulties. The paediatrician intervened immediately to provide the necessary treatment. It was decided to transfer him to another hospital, since there was no appropriate medical unit on site. I was in the ambulance with E.İ. The child was intubated. The transfer was carried out in an incubator. At the KTÜ Farabi hospital, the duty paediatrician, Ms T.Ö., did not examine the child. She simply said that we should go to the Trabzon Medico-Surgical and Obstetrics Centre. Once there, doctor K.B. also refused to admit the child on the grounds that there were no available places. He took this decision without even examining the child. We went back and forth between hospitals, but no one would accept him. He died in the ambulance outside the Trabzon Medico-Surgical and Obstetrics Centre.” E.İ.: “I work as a nurse at the Gümüşhane public hospital. I was on duty on the day of the incident. The child had been brought to us in an incubator so that we would take him to the KTÜ Farabi hospital. Once there, doctor K.M. told us that it was impossible to take charge of the child and that he ought to be looked after by a specialised paediatrician. He told us to go and see doctor T.Ö. That is what we did. Ms T.Ö., without even examining the child, told us that there were no places in the hospital and that he should be transferred to the Trabzon Medico-Surgical and Obstetrics Centre. We went there immediately. Doctor K.B. did not examine the child. He simply told us that there were no places in the hospital. We insisted for about half an hour that he take the child in for treatment. He refused. We then set off again for the KTÜ Farabi hospital. Doctor T.Ö. again refused to admit the child and insisted that he be transferred to the Giresun public hospital. The child’s father and I protested strongly against this decision. Doctor T.Ö. then asked us to provide her with an official document stating that there were no places at the Trabzon Medico-Surgical and Obstetrics Centre. As no one had thought to give us such a document, we were unable to give it to her. She then asked us to return once more to the Trabzon Medico-Surgical and Obstetrics Centre. Faced with her categorical refusal, we set off once again for the Trabzon Medico-Surgical and Obstetrics Centre. Once there, the doctors again refused to admit the child. The child died in the ambulance at about 3.30 a.m.” K.M.: “On the evening of the incident, I was on duty at the adult emergency department at the KTÜ Farabi hospital. I spoke to the father on the telephone. I told him that paediatrics was not my field, but that I could help him with the transfer to the emergency paediatrics department.” T.Ö.: “I was on duty at the paediatrics department in the KTÜ Farabi hospital on the evening of the incident. The Gümüşhane public hospital did not contact us to find out whether or not there were free beds. The child was transferred directly to our hospital. I immediately addressed myself to his care. Other than the presence of meconium on his body, the child was fine. His vital functions were normal. I tested his oxygen saturation level, and it was between 95 and 100%. As there was a risk that the child would inhale meconium, I preferred to keep him [at the hospital] in order to ensure closer monitoring. However, I discovered that there were no beds in the department. The child’s father told me that doctor K.M. had stated that there were places available in the hospital. I then called doctor K.M., who was in the adult emergency department. He told me that he had thought that there were still places in the neonatal unit, but that he had not thought it necessary to call and check. I then expressed my displeasure to him. The child’s father, who was accompanied by a friend, protested strongly against my decision to refuse to admit [the child] for lack of a bed. But I had only followed the procedure. The head of department had expressly asked us not to accept patients if there were no places available and to organise for their immediate transfer. That is what I attempted to do. Someone from the Trabzon Medico-Surgical and Obstetrics Centre told me on the telephone that there was one place available. After completing the administrative formalities, I ordered an ambulance journey. However, the ambulance came back to our hospital about two hours later, since the Trabzon Medico-Surgical and Obstetrics Centre had refused to admit him. As there was no official document to that effect, I again transferred the patient to the same hospital. As it was impossible to take the child into our care, I did not go ahead with his administrative registration or open a treatment file.” Doctor A.A.: “I saw doctor T.Ö. looking after the child. He was doing well and was not intubated. The oxygen saturation level was about 95%.” Nurse A.A.: “I do not recall having seen any intubated child in the paediatric unit of the KTÜ Farabi hospital on the evening of the incident.” İ.E.: “I am a doctor at the KTÜ Farabi hospital. The child was taken care of by doctor T.Ö. From what I saw, his general state was entirely satisfactory. The oxygen saturation level was 95%.” Y.A.: “I am the head of the paediatric department at KTÜ Farabi hospital. My assistant, doctor T.Ö., was right to refuse to admit the child, because we cannot admit patients when the department is full. On the other hand, she ought to have opened an administrative file.” K.B.: “I was on duty at the Trabzon Medico-Surgical and Obstetrics Centre. At about 2 a.m. on 1 April 2005, an ambulance carrying an intubated newborn baby arrived at our hospital. I did not want to take the child out of the incubator, since there is a risk of hypothermia with premature babies. I called doctor M.K. to ask for his advice, since the child needed to be put on a respirator, but there were no available places in the department. I called the other hospitals to try to find a place, but without success. I then told them to return to the KTÜ Farabi hospital. Around one hour later, they came back asking for an official document stating that there were no available places in our hospital. I did not give them a document of this sort, but I told them they could visit the department if they didn’t believe me. While I was in the middle of explaining all this, I was suddenly informed that the child had had a heart attack. I immediately went into the ambulance to carry out resuscitation, but in spite of all my efforts I was unable to save the child. I do not think that I was negligent. If we had admitted the child, we would have had to care for him in an ordinary bed. We would have been unable to control his temperature and guarantee artificial ventilation in those conditions, which in fact would probably have caused an even quicker death.” M.K.: “K.B. called me to ask for advice. As we had no places, I told him to organise a transfer to the nearest university hospital. The patient was in an incubator in the ambulance. Yet we didn’t even have an incubator available in the hospital. We would have lost the patient much more quickly had we admitted him. We couldn’t really do anything else. Furthermore, according to what I’ve been told, Gümüşhane public hospital would not have wanted to lend us the ambulance incubator.” 18. With regard to the available places in the neonatal units on the evening of the incident, the criminal investigation revealed that there had been only one incubator at the Gümüşhane public hospital and that it was out of order. 19. At the KTÜ Farabi public hospital, there were five children in the maternity unit and nineteen in the neonatal unit, where capacity was limited to fourteen children. 20. There were four incubators at the CMOT: three were occupied and the fourth was out of order. Furthermore, they were not equipped with assisted ventilation systems. 21. With regard to the two other establishments located in the region, it was noted that, out of nine incubators at the Fatih public hospital, two were available at 3 p.m. on 31 March 2005, but that they did not have assisted ventilation systems. 22. The Giresun Medico-Surgical and Obstetrics Centre had no neonatal unit at all. 23. A full autopsy was carried out on Tolga’s body. It revealed, in particular, that the child’s lungs showed signs of “asphyxial haemorrhage”. 24. On 12 May 2005 the Gümüşhane public prosecutor held that he did not have jurisdiction and relinquished the investigation to the Trabzon prosecutor’s office. 25. On 1 June 2005 the Trabzon public prosecutor sent the file to the Karadeniz University Rector’s Office, to which the KTÜ Farabi public hospital was attached. 26. On 20 October 2005 a committee of investigation, composed of doctors, issued a report concluding that the doctors in question had not committed any fault and that, accordingly, there were no grounds to grant authorisation for bringing proceedings against them. 27. On 19 January 2006 the Supreme Administrative Council upheld that decision. 28. On 2 May 2005 the Gümüşhane Governor refused to open a criminal investigation against doctor N.A., considering that he had committed no breach of his professional duties. 29. On 9 May 2005 the Gümüşhane public prosecutor filed an objection to that decision, on the grounds that doctor N.A. ought not to have ordered the child’s transfer to a hospital that had no places available. 30. On 18 May 2005 the Trabzon Regional Administrative Court rejected the prosecutor’s objection. 31. On 31 May 2005, taking note of that judgment, which was ipso jure final, the prosecutor issued a decision that there was no case to answer. 32. In the absence of an appeal before the Assize Court, this decision became final on 23 June 2005. 33. On 3 May 2005 the Trabzon Governor refused to open proceedings against doctors K.B. and M.K., taking the view that they could not be criticised for any negligence in performing their duties. 34. The Trabzon public prosecutor lodged an objection to that decision, considering that the accused had indeed committed an offence and that they ought to be referred to the courts for negligence in the performance of their duties. 35. On 8 June 2005 the Trabzon Regional Administrative Court rejected the prosecutor’s objection. 36. On 21 June 2005 the prosecutor, who was obliged to comply with that final judgment, issued a decision that there was no case to answer. 37. In the absence of an appeal before the Assize Court, this decision became final on 22 July 2005. 38. An investigation committee within the Ministry of Health’s Trabzon branch decided of its own motion to carry out administrative investigations. 39. On completion of these investigations, on 26 April 2005 Trabzon Governor refused to authorise the opening of an additional investigation in respect of doctors K.B. and M.K. 40. By contrast, in respect of doctor T.Ö., the Governor accepted the conclusions of the investigation committee and decided to open a criminal investigation for professional negligence. 41. To that end, on 17 May 2005 the Trabzon public prosecutor, to whom the case had been referred back, transferred the file to the Rector’s Office of Karadeniz University, to which T.Ö. was subordinate. 42. The Rector’s Office immediately opened an administrative inquiry. 43. This confirmed the preliminary conclusions reached by the ministerial investigation committee. 44. On 25 August 2006 the Rector’s Office authorised the opening of a criminal investigation in respect of T.Ö. The relevant passages of that decision read as follows: “Health Inspector S.M. considered in his report of 26 April 2005 that doctor T.Ö. had been negligent and that she should be held liable. In his report of 26 June 2006, Health Inspector G.Ç. found that doctor T.Ö. ought to have carried out administrative registration of the patient and opened a treatment file. The information in the file reveals that there were no places available in the KTÜ Farabi hospital. The patient’s transfer to this hospital was due to a failure in communication and coordination. At the KTÜ Farabi hospital, no adequate treatment was given, although the patient’s state was very serious and his condition was life-threatening. Furthermore, apart from the witness statements by medical staff from the KTÜ Farabi hospital, there is no evidence showing that the patient was examined by a doctor. In addition, there is no administrative file or treatment file in the patient’s name. Doctor T.Ö.’s explanation that “if [she] did not open an administrative file, it was because we could not admit the patient to the hospital” is unacceptable conduct. In this incident, it must be concluded that there was negligence and fault on the part of doctor T.Ö.” 45. On 14 September 2006 T.Ö. applied to have that decision set aside. 46. On 25 July 2007 the Supreme Administrative Council set aside the decision of 25 August 2006 (see paragraph 44 above) on the grounds that, in the absence of new evidence capable of justifying revision, its previous judgment of 19 January 2006 (see paragraph 27 above) remained final.