ISTRĂȚOIU v. ROMANIA
Inadmissible
Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Florin Istrățoiu, is a Romanian national, who was born in 1975 and lives in Tilbury, the United Kingdom. He was represented before the Court by Mr C. J. Barnett, a lawyer practising in London. 2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 12 May 2005, the applicant’s son, aged five years and six months at that time, underwent a tonsillectomy – an operation to remove his tonsils – performed by Dr O.L.T. in a private clinic. After the surgery the child’s condition was stable and the first medical check-up was scheduled for 21 May 2005. 5. During the medical check-up, which took place on the scheduled date, Dr O.L.T. assured the parents that the post-surgical recovery was going well and recommended that they continue caring for their child in the same way. 6. In the morning of 23 May 2005 the child suffered a haemorrhage, causing blood to flood his mouth and nose. The applicant’s mother-in-law called an ambulance and his wife went outside to wait for it. Before the ambulance arrived, she and L.S., a neighbour she had met on her way out, took a taxi and rushed the child to the emergency unit of the Bacău County Hospital. 7. According to the applicant, at the emergency unit of the Bacău County Hospital his wife and son encountered a member of the medical staff who, without examining his son, advised his wife to take the child to the paediatric unit of the same hospital for medical care. 8. The child did not receive any medical treatment at the emergency unit of the Bacău County Hospital because the applicant’s wife had immediately taken the child to the paediatric unit of the hospital. 9. Upon arrival at the paediatric unit, the doctors tried to resuscitate the child and clear his respiratory channels, but without any success. The child had died. 10. On 23 May 2005, the Bacău Police Department initiated of its own motion a criminal investigation into the death of the applicant’s son. On the following day, it carried out an investigation on the premises of the Bacău County Hospital (cercetare la fața locului) and at the applicant’s home. 11. On the same date the Bacău Police Department asked the Bacău Forensic Service to produce an autopsy report in respect of the applicant’s son. 12. On the same date the Bacău Forensic Service issued a death certificate which concluded that the applicant’s son had died of acute respiratory failure as a result of the blood that had blocked his airways. 13. On 28 and 29 May as well as 16 and 23 June 2005 the Bacău Police Department heard the applicant and his wife. 14. On 2 June 2005 the applicant lodged a criminal complaint with the Bacău Prosecutor’s Office for aggravated involuntary manslaughter against Dr O.L.T. and the unidentified staff member who had been working at the Bacău County Hospital emergency unit on the morning of 23 May 2005. He alleged that the faulty surgical and post-surgical treatment received by his son from Dr O.L.T., as well as the refusal of the unidentified staff member of the Bacău County Hospital emergency unit to urgently treat his son, had resulted in his death. In addition, he asked the investigating authorities to identify all the medical personnel working at the emergency unit of the Bacău County Hospital on the morning of 23 May 2005 because their identities were unknown to him. Furthermore, he informed the investigating authorities that he reserved his right to join the criminal proceedings as a civil party and his right to request that the private clinic where the surgery had taken place and the Bacău County Hospital be held jointly liable with their staff for their negligence while on duty under the relevant provisions of the criminal procedure law and civil law. Lastly, he asked the domestic authorities to order the Bucharest Forensic Service to carry out a forensic expert report that would answer his questions about the cause and circumstances of his son’s death. 15. On 21 June 2005, the Bacău Forensic Service produced the autopsy report requested by the Bacău Police Department on 24 May 2005. The report, signed by three forensic experts, relied amongst other things on a histological examination of tissue collected from the applicant’s son after his death. It noted the opening of a very small blood vessel in the cavity of the upper left tonsil. It concluded that the child’s death had been violent and had been caused by severe respiratory failure resulting from the aspiration of blood into his airways. The bleeding had originated from a small damaged arterial blood vessel located in the cavity of the left tonsil and had lasted for a few hours. Blood had accumulated in the stomach cavity, which had resulted in vomiting and subsequently in the blocking of the child’s airways. The blood vessel had been damaged by local acute inflammation – also confirmed by the histological examination – which had happened on the eleventh day after the surgery. The report noted that although those circumstances were rare, they occurred in 4% to 8% of cases. It excluded the possibility that the bleeding had been caused by the severing of a larger blood vessel or an artery during surgery. Had that been the case, the bleeding would have happened faster and more abundantly. Lastly, it recommended that the report be submitted for approval by the forensic review board of the Iaşi Forensic Service, which could also assess, among other things, the medical conduct in the case. 16. On 1 July 2005, further to the applicant’s request, the Bacău Police Department provided him with a copy of the autopsy report produced by the Bacău Forensic Service and of the surgery report produced by the private clinic where his son’s surgery had been performed. 17. On an unspecified date, the autopsy report was sent for approval to the review board of the Iaşi Forensic Service and the higher forensic review board of the Bucharest Forensic Service. 18. On 11, 18 and 21 July 2005 the Bacău Police Department heard the medical personnel of the private clinic where the applicant’s son had undergone surgery and who had been involved in his pre- and post-surgical care, as well as Dr O.L.T. 19. On 28 July 2005, the applicant lodged a request with the Bacău Police Department for a new forensic expert report to be produced in his son’s case. He requested that a forensic expert chosen by him and an otolaryngologist be allowed to take part in the process. 20. On 30 July 2005, the Iaşi Forensic Service review board approved the autopsy report of 21 June 2005. The board included an otolaryngologist. It concluded, among other things, that the surgical operation and the postsurgical examinations had been appropriate and that the applicant’s son had not been treated negligently. The delayed haemorrhage had not been caused by the surgery, but by a secondary inflammation. The last medical examination of the applicant’s son could not have identified a microscopic infection. However, the medical personnel of the Bacău County Hospital emergency unit had to explain their conduct given that their statements had not been attached to the examined file. 21. On 27 October 2005 the higher forensic review board of the Bucharest Forensic Service examined and approved the findings of the autopsy report and of the Iaşi Forensic Service review board. The board, which also included an otolaryngologist, concluded that Dr O.L.T. had not committed any medical errors and that the cause of death established by the autopsy report was correct. The death of the applicant’s son was not a consequence of the surgery. No one could be blamed for his haemorrhage, because it had been caused by a necrosis of the wall of the carotid artery which had subsequently spontaneously broken. The choices made by the medical personnel of the Bacău County Hospital emergency unit had been based on the equipment available in the emergency unit and the seriousness of the condition of the applicant’s son. Although it was clear that the applicant’s son had died by the time he had reached the paediatric unit, there were no medical records to show whether he had still been alive when he had arrived at the emergency unit of the hospital. Given the circumstances and the seriousness of his condition, there was little hope that he could have been saved. 22. On 4 November 2005, the Bacău Prosecutor’s Office authorised a new forensic expert report, deemed necessary by the applicant. However, the report was never produced because on 6 December 2005 the higher forensic review board of the Bucharest Forensic Service communicated its report of 27 October 2005 to the Bacău Police Department. 23. From 28 November 2005 to 16 May 2007 the Bacău Police Department and the prosecutor’s office repeatedly questioned the medical personnel of the Bacău County Hospital emergency unit who had been on duty when the applicant’s son had arrived at the hospital, namely doctors S.C., L.E. and H.S.; the orderly, L.L.; nurse S.M. and head nurse N.L.O. The investigators also questioned R.D.M., the taxi driver who had transported the applicant’s wife and son to the hospital, and L.S., the applicant’s neighbour who had accompanied them. 24. On 21 December 2005, at the request of the Bacău Police Department, the Bacău County Hospital notified the police that their internal inquiry had been unable to identify the individual who had directed the applicant’s wife and her son to a different unit of the hospital, because all those questioned had stated that they did not know who had done so. 25. On 4 January 2006, the applicant submitted before the Bacău Prosecutor’s Office an opinion drafted by a forensic medical expert chosen by him. It criticised the conclusions of the medical forensic documents produced in the case and recommended that a new forensic expert report be produced. 26. On 6 January 2006 the Bacău Medical Council informed the Bacău Police Department that in accordance with the Deontology Code and their professional duties, the medical personnel of the Bacău County Hospital emergency unit had been under an obligation to provide medical assistance in cases similar to that of the applicant’s son. However, only a doctor had had the power to decide on the situation and the medical procedure that needed to be followed in respect of the applicant’s son after a medical examination. The applicant’s son had not been provided with the required medical assistance because the child’s mother had rushed him out of the emergency unit once she had been directed by an unidentified individual, without having entered a doctor’s office. Therefore the child had never been examined by one of the doctors on duty that day. Although the medical personnel who had been on duty in the hospital reception area that day had been questioned, the inquiry carried out by the disciplinary board of the Bacău Medical Council had been unable to identify the person who had redirected the applicant’s wife. 27. On the same date the Bacău Medical Council informed the Bacău Police Department that in their opinion, given the serious condition of the applicant’s son, had he been seen by one of the on-duty doctors, they could have treated him in the emergency unit. Moreover, the child’s condition did not warrant a decision to direct him elsewhere for treatment. 28. On 8 February 2006, the applicant reiterated his request for a new forensic expert report. 29. On 28 April 2006, the higher forensic review board of the Bucharest Forensic Service notified the Bacău Prosecutor’s Office that under the relevant domestic legislation, a new forensic expert report could not be ordered unless there were new medical and factual elements, given that the review board had already issued its opinion on 27 October 2005. 30. By an order of 21 July 2006 the Bacău Prosecutor’s Office instituted criminal proceedings (a ȋnceput urmărirea penală) against the head nurse, N.L.O., for negligence while on duty because he had failed to notify the head doctor and had not taken measures to stabilise the condition of the applicant’s child, who had been brought to the hospital in a critical condition. At the same time, the prosecutor’s office continued to investigate Dr O.L.T. for aggravated involuntary manslaughter and Dr H.S. and nurse S.M. for negligence while on duty. 31. On 23 May 2007 the Bacău Council of Nurses informed the Bacău Police Department that under the relevant domestic legislation it was competent to organise and control the nursing profession. However, the applicant had failed to lodge a formal complaint about the events of 23 May 2005. Although, following press reports, the organisation had carried out a preliminary inquiry into the death of the applicant’s son, it appeared from the available evidence and the inquiry already launched by the organisation into the case that the accusations had been targeted at doctors. The Council of Nurses was not competent to institute disciplinary proceedings against doctors. 32. On 26 March and 21 June 2007, the applicant again reiterated his request for a new forensic expert report. He also requested that Dr O.L.T. and the nurses who had assisted him during the surgery be subjected to a polygraph test. 33. On 25 and 29 May 2007, the authorities investigating the case confronted head nurse N.L.O. with witnesses L.L., L.S. and Dr H.S. 34. On 2 July 2007, the Bacău Prosecutor’s Office dismissed the applicant’s request for a new forensic expert report on the grounds that the autopsy report prepared by the Bacău Forensic Service had been approved by the Iaşi Forensic Service review board and the higher forensic review board of the Bucharest Forensic Service. The latter board had confirmed the accuracy of both the methodology used and the conclusions of the autopsy report. The inconsistencies claimed by the applicant between the autopsy report and the board’s report had been irrelevant in determining the cause of death and whether the doctor who had performed the surgery had committed any medical errors. The prosecutor’s order of 4 November 2005 for a new forensic expert report had not been carried out and was no longer required in the case for the reasons outlined above. Polygraph testing as a means of establishing evidence was not regulated by the Criminal Procedure Code and therefore was not required for the case. 35. By order of 12 March 2008, the Bacău Prosecutor’s Office, relying on Article 10 (d) of the Romanian Criminal Procedure Code, decided to discontinue the criminal proceedings (scoaterea de sub urmărire penală) against head nurse N.L.O. for negligence while on duty and not to institute criminal proceedings (neînceperea urmăririi penale) against Dr O.L.T., for aggravated involuntary manslaughter, and against Dr H.S. and nurse M.S. for negligence while on duty, on the grounds that their actions lacked the elements of an offence. The prosecutor’s office held that the clinical and medical investigation, as well as the tonsillectomy performed by Dr O.L.T., had been adequate and that no omissions or negligence could be established in his conduct towards the victim. In addition, none of the medical personnel of the Bacău County Hospital emergency unit had spoken with the applicant’s wife in order to direct her to the paediatric unit, and the professional duties of head nurse N.L.O. did not include the required power of decision. The applicant challenged the order before the superior prosecutor. 36. By a final order of 16 June 2008, the superior prosecutor rejected the applicant’s challenge, holding that the available evidence proved that the accused could not be held liable for directly causing the death of the applicant’s son. Dr O.L.T. had observed all the lawful procedures when he had performed the surgery, and the medical community accepted that the severe inflammation which had led to the child’s death had been a rare case. As regards the medical staff of the Bacău County Hospital emergency unit, it could not be established without any doubt whether the child had been alive on his arrival at the hospital. The applicant challenged the order before the domestic courts, arguing that the investigating authorities had failed to produce all the necessary evidence, in particular a new expert report. 37. By a judgment of 27 January 2009, the Bacău District Court dismissed the applicant’s complaint as lodged outside the statutory timelimit. The applicant appealed on points of law (recurs) against the judgment. 38. On 16 June 2009, the Bacău County Court allowed the applicant’s appeal on points of law, quashed the judgment and remitted the case to the first-instance court. 39. By a judgment of 14 December 2009, the Bacău District Court dismissed the applicant’s challenge on the basis of the available testimonial, documentary and forensic evidence by relying on Article 10 (d) of the Romanian Criminal Procedure Code. It held that none of the defendants who had been on duty at the Bacău County Hospital emergency unit when the applicant’s wife had arrived with her son had had a direct conversation with her or directed her to the paediatric unit. The job description of the head nurse, N.L.O., did not give him the power to make such a decision. In addition, a new forensic expert report was not necessary for the case. The higher forensic review board of the Bucharest Forensic Service appealed on points of law against the judgment. He argued that a new forensic expert report had been needed in order to clarify the causes and circumstances of his son’s death. 40. By a final judgment of 27 April 2010, the Bacău County Court dismissed the applicant’s appeal on points of law. It held that in spite of the efforts made by the criminal investigators and the court itself, it could not be established beyond any doubt that the person who had directed the applicant’s wife to the paediatric unit was a staff member of the emergency unit of the Bacău County Hospital on duty at the time of the death of the applicant’s son. There had been no evidence in the file that the applicant’s wife had spoken to a doctor and that the doctor had decided to direct her to the paediatric unit. As for the medical papers, which the court considered to be the actual object of the applicant’ 41. The applicant instituted disciplinary proceedings against Dr O.L.T. before the disciplinary board of the Bacău Medical Council. 42. By a decision of 1 August 2005, the medical council concluded that there were no elements of medical fault. 43. The applicant challenged that decision before the higher disciplinary board of the Romanian Medical Council (“the Higher Board”), arguing that not only had Dr O.L.T. been exonerated, but none of the medical personnel on duty at the Bacău County Hospital emergency unit had been held accountable. 44. By a decision of 10 November 2006, the Higher Board dismissed the applicant’s challenge. It held that, on the basis of the available forensic evidence, otolaryngologists’ opinions and the medical doctrine, the death of the applicant’s son had been caused by a slow haemorrhage located in the cavity of the tonsils. This had been triggered by a local acute inflammatory lesion, which had resulted in the rupture of a small blood vessel, probably after the child had swallowed hard food without chewing it sufficiently. The vascular necrosis which caused the haemorrhage was the result of local inflammation and could not have been diagnosed prior to the time at which it had occurred. It could not have been foreseen by a post-surgical examination of the area operated on. Consequently, the doctor had not breached the rules of good medical conduct. 45. The Higher Board also upheld the outcome of the internal inquiry carried out by the Bacău County Hospital. It noted that the inquiry had been unable to identify the person who had directed the applicant’s wife to the paediatric unit and therefore no administrative sanction could be applied. The applicant did not appeal against the decision of the Higher Board before the domestic courts. 46. The relevant domestic legal provisions concerning the delivery of expert forensic medical reports and the authorities competent for issuing them, as well as the relevant domestic law and practice concerning the civil liability of doctors and hospitals for medical errors, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-53, 16 February 2010) and Codarcea v. Romania (no. 31675/04, § 62, 2 June 2009). 47. The relevant provisions on civil liability for tort of the former Romanian Civil Code read as follows: “Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.” “Everyone shall be liable for damage he has caused not only through his own actions but also through his failure to act or his negligence.” 48. The provisions of the former Romanian Code of Criminal Procedure regarding the instituting of civil proceedings alone or in conjunction with criminal proceedings read as follows: “(1) If a victim has not joined criminal proceedings as a civil party, he or she may bring separate proceedings for damages caused as a result of the offence before the civil courts. (2) Civil proceedings shall be suspended pending a final judgment of the criminal courts ...” 49. Articles 1000(3) and 1003 of the former Romanian Civil Code provide that those responsible for the supervision and control of a person whom they have appointed to perform a duty are liable for any damage caused by the appointed person in the performance of his or her functions. If several persons are responsible for the damage caused, they are jointly liable for redress. 50. Law no. 95/2006 on health-care reform, in force as from 1 May 2006, introduced the notion of medical negligence and created an obligation for medical personnel to obtain insurance for any civil liability resulting from their work. Its relevant provisions read as follows: “(1) Medical personnel ... who provide medical assistance, within the public and/or private system, in a place specifically designated for this purpose or outside such a place further to an express request from the person/s requiring the medical assistance or from a third party requesting assistance for one or more persons who, for no fault of their own, are unable to request such assistance, shall be insured against medical negligence covering professional civil liability for damage caused through a medical act. (2) A copy of the insurance policy shall be presented before the conclusion of an employment contract, being a mandatory condition for employment.” “(1) The insurer shall grant compensation for damage for which the insured person is liable, in accordance with the law, to third parties who are ascertained to have been subjected to an act of medical negligence, as well as for the legal fees of the person damaged through the medical act. (2) Damages shall be awarded irrespective of the place where the medical assistance was provided. (3) The mandatory insurance ... shall comprise all types of medical treatment provided within the specialty and medical competency of the insured person and within the whole range of medical services offered by the relevant units.” “(1) Damages shall be awarded for the amounts the insured person is obliged to pay as indemnification and legal fees to the person/s damaged through the provision of inadequate medical assistance, which may have triggered bodily injury or death. (2) In the event of death, damages shall be awarded to the patient’s legal successors who have requested them. (3) Damages shall be awarded also in the event that medical assistance was not granted even though the condition of the person/s who requested it or for whom medical assistance was requested required such intervention. (4) Damages shall include potential expenses incurred by a lawsuit in which the insured person is ordered to pay them; the maximum liability for legal fees shall be set out in the insurance policy.” “Acts of medical negligence within the medical activities of prevention, diagnostic and treatment shall be time-barred three years from the occurrence of the damage, except for acts that constitute criminal offences”. 51. The relevant provisions of Decree no. 167/1958 on the statute of limitation in force at the relevant time read as follows: “The right to lodge an action with a pecuniary scope shall be time-barred, if it was not used within the prescribed period.” “The term of the statute of limitation is three years.” 52. The Government submitted several final court judgments concerning proceedings instituted by victims or doctors against the disciplinary decisions of medical councils in respect of cases of medical negligence. Two final judgments rendered by the Ploieşti Court of Appeal and the Bucharest Court of Appeal on 7 February 2012 and 11 April 2013, respectively, dismissed the appeals brought by the victims against the decisions of the medical councils not to pursue disciplinary proceedings against the doctors. Nine final judgments delivered by the Piteşti Court of Appeal and the Bacău Court of Appeal from 23 February 2007 to 21 March 2013 dismissed the doctors’ appeals against the decisions of the medical councils whereby sanctions were applied to them. 53. The Government further submitted one final judgment delivered on 28 May 2013 by the Buzău County Court allowing the victim’s general tortlaw action for joint pecuniary and non-pecuniary damage against the hospital and the doctor who had operated on the victim in 2005 by also relying on Law 95/2006.