CASE OF SALES v. PORTUGAL
No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time)
Paulo Pinto De Albuquerque
4. The applicant was born in 1969 and lives in Setúbal. 5. On 29 August 2002 the applicant was admitted to the emergency services in S. Bernardo Hospital (since renamed Setúbal Hospital Centre). She gave birth to a son who has irreversible injuries caused by the birth. 6. On 26 January 2005 the applicant brought a civil action before the Almada Administrative Court against the hospital, claiming damages for the injuries caused to her son. She claimed that contrary to her doctor’s instructions, the medical staff who treated her during labor had not performed a caesarean thus her son being born with several problems which caused him permanent motor-neurone injuries. She held that the hospital was responsible for medical negligence at birth. 7. On 9 March 2005 the hospital contested the civil action. 8. On 17 October 2005 a preliminary hearing was held. A second session of the preliminary hearing was scheduled for 5 December 2005, which was adjourned because the time-limits for the analysis of the documents had not expired. The hearing was adjourned to 7 February 2006. 9. Meanwhile, on 27 December 2006, the applicant requested the Almada Administrative Court to issue an interim measure (providência cautelar) seeking a temporary remediation (arbitramento de uma reparação provisória). On 16 January 2006 the Almada Administrative Court ordered interim payment of EUR 550 per month to the applicant and her husband until the decision in the main proceedings would be delivered and become res judicata. 10. On 2 February 2006 the hospital sought leave for the medical and nursing team to intervene in the proceedings. On 20 February 2006 the applicant replied to the hospital’s request. 11. The hearing called for 7 February 2006 had to be adjourned because of the hospital’s request. 12. On 14 March 2006 the judge gave directions (despacho saneador) setting out the matters that had already been established and those that remained outstanding. 13. On 31 March and on 6 April 2006 the hospital and the applicant submitted evidence and both requested expert’s appointement. 14. On 7 May 2006 the judge admitted the evidence submitted by the parties and ordered an expert medical report. 15. On 11 July 2006 the Almada Court requested the Portuguese Medical Chamber (Ordem dos Médicos) to appoint medical experts. Several requests were made concerning medical experts in gynaecology and obstetrics. The Portuguese Medical Chamber replied to all requests. 16. On 28 February 2007 the Forensic Institute (Instituto de Medicina Legal) submitted its forensic report, which contained its preliminary conclusions. 17. On 5 March 2007 the Forensic Institute lodged a request with the Almada Administrative Court seeking access to all the medical reports in respect of the birth of the applicant’s son. On 9 March 2007 the parties were notified to submit the relevant medical reports. On 21 March 2007 the hospital submitted its reports and on 23 March 2007 the applicant request for an extension of the time-limit. On 18 April 2007 the applicant submitted the medical reports. 18. On 31 January 2008 the Forensic Institute submitted its expert report. 19. On 4 June and on 20 June 2008, the appointed experts in gynaecology and obstetrics and the appointed experts in paediatrics submitted their reports, respectively. 20. The parties were notified of the reports and on 15 July 2008 the applicant requested a second expert medical report. On 18 July 2008 the hospital opposed to the applicant’s request. 21. On 28 July 2008 the Almada Adminitrative Court requested the experts to clarify existing doubts with regard to their reports. The clarifications were submitted on 3 and 15 October 2008. 22. On 14 November 2008 the Almada Administrative Court requested the Portuguese Medical Chamber to appoint experts in gynaecology and obstetrics to provide technical advice during trial. On 3 February 2009 the Portuguese Medical Chamber appointed an expert. 23. Between 9 December 2009 and 28 September 2010 the Almada Administrative Court listed nine hearings. In between hearings new evidence was submitted by the parties. 24. On 2 March 2011 the Almada Administrative Court delivered its decision in which it considered that the hospital could not be held liable for the injuries for lack of evidence in that regard. 25. On 8 April 2011 the applicant challenged the outcome of the proceedings before the Administrative Central Court of the South. 26. On 22 March 2012 the Administrative Central Court upheld the first-instance decision. 27. On 19 June 2012 the application of the interim measure ended when the decision of the second-instance court became res judicata.