CASE OF S.B. v. ROMANIA
Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)
Alvina Gyulumyan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra
5. The applicant was born in 1952 and lives in Bucharest. 6. In August 2001, the applicant started going to the dental practice of Dr A.D. in order to have dental bridges fitted. The treatment involved work on about twenty teeth, fitting bridges and crowns and adapting the adjacent teeth. 7. The treatment started in September 2001. When the first part of the bridgework was ready, the applicant noticed that it did not fit well. The dentist told her that she could still use it in order to eat and that he would rectify the problem. When the rest of the bridgework was ready, she again noticed that she could not close her mouth and that when she tried to eat it caused her great pain. The bridges were fitted provisionally and it was agreed that they would be permanently fixed at a later stage after being further adapted. Nevertheless, while wearing them she realised that her gums were affected. During the following days, she went to the dental surgery several times in order to have the bridges adapted, but the dentist told her that they were perfect and that all that remained was for them to be fixed permanently, even though she showed him that she could not close her mouth and that her gums were bleeding. 8. The applicant alleged that she had attempted to make a new appointment with Dr A.D. on several occasions prior to the end of January 2002, but to no avail. During this period, her state of health worsened and she had no money to pay for further dental treatment. 9. On 30 January 2002 the dentist issued her with a certificate of guarantee for the dental work that he had carried out and he kept the bridges with a view to adapting them. The applicant only received them back one and a half months later, without any change having been made to them. 10. She insisted that she could not use the bridgework, she could not eat while wearing it and that it hurt her gums and caused them to become infected. 11. In a complaint of 18 July 2002 addressed to the Ministry of Health, the applicant asked to undergo a medical expert examination in order to determine whether the bridgework was functional, to what extent it affected her teeth and how long she could wear bridges which were only fitted provisionally without this affecting her teeth and gums or causing irreversible speech problems. 12. On 6 August 2002 she was informed that her complaint would be reviewed by the Bucharest College of Doctors. 13. At the end of September 2002, she had a consultation with another dentist, Dr A.B. According to the applicant, she was told that the bridgework had not been correctly done and, given all the problems that it had caused her (infected gums, cuts, pain), it was not recommended that the bridges be fixed permanently. 14. A few days later, she was asked to undergo an examination by a panel of experts attached to the Faculty of Dentistry. 15. The second examination took place on 8 October 2002. She submitted that she had been told that there had been no need to perform an overly detailed examination, as it could be easily seen that the bridges should not be worn. 16. In a letter of 14 January 2003 addressed to the Bucharest College of Doctors, she asked to be informed of the findings in the medical expert report. On the same date, the Bucharest College of Doctors replied that the findings of the medical examination that they had carried out were only for the internal use of the Disciplinary Panel of the College of Doctors. If she wished to obtain an expert report, she had to request one from the National Institute of Forensic Medicine (hereafter, “the Institute”). 17. She contacted the Institute, but was informed that a medical expert report could only be requested in the context of judicial proceedings. 18. On 10 March 2003 the applicant lodged a criminal complaint, asking that a detailed medical expert report be ordered to determine whether there had been medical negligence. In the same complaint, she sought the reimbursement of the cost of the remaining dental treatment, which had not been returned to her, as well as compensation for non-pecuniary damage arising from the suffering and health problems that the treatment in question had caused her. Her complaint was registered with the competent police department on 9 May 2003. 19. In a letter of 11 August 2003, the police department asked the Institute to draw up a medical expert report in order to determine whether the dental work performed by Dr A.D. had caused injuries which required medical treatment. 20. The Institute, having received a request by the applicant for the examination not to be conducted by the University of Bucharest, where Dr A.D. had studied, asked the Iași Dental Hospital to examine the applicant. 21. The Iași Dental Hospital issued its report on 4 September 2003, after having examined the applicant. The applicant took the report and handed it over to the Institute, which issued a forensic expert report on 4 December 2003. Its findings were as follows: “ after having examined S.B. and reviewing the medical papers, it appears that in September 2001 she underwent treatment to fit a variety of bridges and crowns, which proved to have been carried out incorrectly and inadequately. The attempt to wear the bridges and the subsequent absence of them led to complications and functional disorders (dental abrasion, chronic marginal periodontitis) [made] very widespread and severe by the dental bridgework, which is currently not correctly adapted to the cervical and axial margins [of the interproximal surfaces]. ... We underline that her current state is not completely the fault of the doctor who performed the work, but is also a result of the lack of dental treatment in the period September 2001 to August 2003, a period of time during which the functional disorders [outlined above were] aggravated because the bridges were not correctly adapted to the cervical and axial margins [of the interproximal surfaces]. In order to redo the treatment and put in place correct bridges, it is estimated that S.B. would have to undergo around thirty to thirty-five days of medical treatment.....” 22. The applicant tried to obtain a copy of that report, but she was told that she could only obtain one once the case had been referred to a court. In the end, she obtained a copy from the investigating officer on 12 October 2004. 23. The applicant contested the findings of this medical expert report, submitting that it had played down the negative findings of the report issued by the Iași Dental Hospital following that hospital’s examination of her. She also complained that there was no opportunity to have the conclusions reviewed by a medical review board. 24. On 23 September 2004 the prosecutor attached to the Bucharest District Court opened a criminal investigation against Dr A.D. on charges of causing bodily harm, for which criminal liability was established by Article 181 of the Criminal Code, as in force at the material time. 25. On 29 January 2005 the same prosecutor put an end to the criminal investigation, reasoning that the applicant’s failure to go to A.D.’s dental surgery in order to have the bridges permanently fixed had led to the deterioration of her state of health. 26. That decision was communicated to the applicant on 8 May 2008. 27. The applicant lodged a complaint against the decision. The complaint was allowed by a prosecutor’s decision of 23 May 2008. The prosecutor held that the case had been investigated on the basis of a crime punishable under Article 184 of the Criminal Code (causing unintentional bodily harm), whereas the decision to terminate the proceedings had concerned a crime punishable under Article 181 of the Criminal Code (causing bodily harm). 28. The case was referred back to the prosecutor. 29. By a decision of 27 May 2008, the prosecutor terminated the criminal investigation against Dr A.D. on the basis that the applicant had failed to lodge a criminal complaint against him within the twomonth timelimit set by the Criminal Code. A criminal action for unintentional bodily harm could only be started on the basis of a preliminary complaint by the victim, which had to be lodged within two months from the date on which the victim had become aware of who the perpetrator was. As the applicant had known who had carried out the dental treatment since August/September 2001 but had only lodged her complaint with the prosecutor on 9 May 2003, it followed that her complaint was out of time. This decision was upheld by the supervising prosecutor on 20 August 2008. 30. The applicant’s application for judicial review of those decisions was dismissed by the Bucharest District Court on 21 November 2008. 31. Her subsequent appeal was allowed by the Bucharest County Court in a final decision of 3 February 2009, by which it was established that the prosecutor and the district court had wrongly assessed the evidence. The County Court noted that the criminal investigation had not been completed within a reasonable time. It was further established that the evidence in the case file had been sufficient to support the allegation that Dr A.D. had committed an act punishable by Article 184 §§ 2 and 4 of the Criminal Code, a crime in respect of which a criminal investigation could be automatically started by a public prosecutor. The County Court drew attention to the findings of the medical expert report in respect of the complications caused by the bridgework. It therefore considered that these complications (the destruction of bone supporting the teeth) amounted to a permanent physical disability. 32. The County Court remitted the case to the Bucharest Sector 1 District Court, instructing that court to consider the case in the light of the crimes punishable under Article 184 §§ 2 and 4 of the Criminal Code. 33. The district court ordered a new expert report from the Institute. The report could not be produced mainly because all the medical documentation from Dr A.D.’s consulting room, consisting of medical records, xrays, dental prints, and so forth, could not be found. The applicant refused to undergo a new medical examination on the ground that the new report should have been based not only on her examination in 2010 but also on the documents existent in her medical file. 34. In its judgment of 8 March 2011 the District Court found, on the one hand, that the applicable statute of limitation had expired. On the other hand, examining the merits of the case it acquitted the defendant on the basis of the expert report of 2003, finding that “the subsequent behaviour of the injured party, who chose to ignore the medical advice of the defendant, refused the completion of the treatment, in particular the permanent fixing of the dental prosthetics, only wore the prosthetics when eating, as she had personally testified before the court, [and failed to maintain] proper oral hygiene, [as] underlined by the expert report, ... led to complications, [which] cannot be blamed on the defendant but on the injured party herself.” 35. The applicant lodged an appeal on points of law with the Bucharest Court of Appeal. She sought a requalification of the charges from Article 184 (causing unintentional bodily harm) to Article 182 (causing intentional bodily harm) of the Criminal Code. 36. By a decision of 4 October 2011 the Bucharest Court of Appeal dismissed the applicant’s appeal on points of law. It held, inter alia, that the additional evidence requested by the applicant such as the contract, order and invoice for the manufacture of the bridges, as well as dental xrays, was irrelevant. Furthermore, it held that no causal link could be established between the treatment and the injuries sustained by the applicant, which were attributable exclusively to her conduct, that is, ignoring medical advice.