CASE OF Z v. POLAND
Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)
George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
7. The applicant was born in 1951 and lives in Piła. 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. On 5 May 2004 the applicant’s daughter, Y, was informed that she was between four and five weeks pregnant. Prior to or early in her pregnancy she developed ulcerative colitis (“UC”). The applicant’s daughter began experiencing the symptoms of UC, such as nausea, abdominal pains, vomiting and diarrhoea. Those symptoms were recurrent and caused pain and discomfort. 10. Y was repeatedly admitted to a number of hospitals. Y, accompanied by the applicant, attended the following hospitals in Poland: 18 to 19 May 2004, Specialist Hospital in Piła, Gynaecology and Obstetrics Department (Szpital Specjalistyczny w Pile, Oddział GinekologicznoPołożniczy); 19 May to1 June 2004 and 4 to 8 June 2004, Specialist Hospital in Piła Internal Medicine Department (Szpital specjalistyczny w Pile, Oddział Chorób Wewnetrznych) (“Piła Hospital”); 8 June to 1 July 2004 and 19 to 28 July 2004, Clinic of Gastroenterology and Nutrition, Independent Public Teaching Hospital No. 2, H. Święcicki Medical Academy in Poznań (Samodzielny Publiczny Szpital Kliniczny Nr 2 im. H. Święcickiego Akademii Medycznej w Poznaniu, Oddział Kliniczny Gastroenterologii, Żywienia Człowieka i Chorób Wewnętrznych) (“Święcicki Hospital”); 13 to 15 July 2004 Obstetrics and Gynaecology Department III, Gynaecology and Obstetrics Teaching Hospital, Independent Public Medical Facility in Poznań (Oddział Położniczo-Ginekologiczny III, Ginekologiczno-Położniczy Szpital Kliniczny Akademii Medycznej w Poznaniu); 28 July to August 2004, Surgery Department of the Specialist Hospital in Piła (Szpital Specjalistyczny w Pile, Oddział Chirurgiczny); 17 August to 4 September 2004, Pirogow Regional Specialist Hospital in Łódź, General and Vascular Surgery Department (Wojewódzki Szpital Specjalistyczny im. Pirogowa w Łodzi, Oddział Chirurgii Ogólnej i Naczyniowej) (“Pirogow Hospital”); 4 September 2004, M. Madurowicz Regional Specialist Hospital in Łódź (Wojewódzki Szpital Specjalistyczny im. M. Madurowicza w Łodzi); 4 to 29 September 2004, Intensive Care Department, Norbert Barlicki University Teaching Hospital No. 1 in Łódź (Uniwersytecki Szpital Kliniczny Nr 1 im. N. Barlickiego Uniwersytetu Medycznego w Łodzi, Oddział Kliniczny Anestezjologii i Intensywnej Terapiii) (“Barlicki Hospital”). 11. The applicant’s daughter was formally diagnosed with UC during her stay in Piła Hospital between 19 May and 1 June 2004. She underwent a number of tests, including an endoscopy and a fibro-sigmoidoscopic examination of the anus. 12. During the visits in the hospitals listed above, the applicant’s daughter received some diagnostic tests and basic treatment. She was given pharmacological treatment (for example, intravenous and oral administration of steroids and antibiotics). 13. On 8 June 2004 Y was admitted to Swiecicki Hospital. Between 8 June and 1 July and 19 and 28 July 2004 she was an inpatient in that hospital. On 19 July 2004 she was diagnosed with an abscess. 14. On 28 July 2004 Y left the clinic. 15. The next day, 29 July 2004, she was admitted to Piła Hospital, where she underwent an operation to remove the abscess. 16. On 17 August 2004 Y was admitted to Pirogow Hospital due to a new abscess and rectovaginal fistula. On the same date she was operated on to remove the abscess. Medical files confirm that at the time Y was admitted to hospital the doctors were aware of Y’s ulcerative colitis . 17. During the applicant’s daughter’s stay in Pirogow Hospital in August 2004 the doctor refused to perform a full endoscopy. In addition, no diagnostic imaging of the abdomen (diagnostyka obrazowa jamy brzusznej) was performed. 18. On 4 September 2004 Y’s condition deteriorated. She was transferred to Madurowicz Hospital. Immediately following her admission she was sent for a surgical operation to establish the cause of the apparent sepsis. During the operation the doctors removed her appendix. Y’s condition deteriorated, consequently immediately after the operation she was transferred to the intensive care unit of Barlicki Hospital. 19. On 5 September 2004 the doctors removed the foetus, which was dead. On 15 September 2004 the doctors removed Y’s uterus. Altogether the applicant’s daughter was operated on six times in Barlicki Hospital. On 29 September 2004 she died of septic shock caused by sepsis. 20. By letter, dated 30 September 2004, Y’s brother asked the hospital not to perform an autopsy. He submitted that the cause of Y’s death was known to him. 21. The Government maintained that on 28 July 2004 Y left the hospital at her own request due to a planned wedding ceremony. In this respect they submitted a copy of Y’s medical file, which in its relevant part reads as follows: “27 July 2004 ...Due to a planned wedding ceremony, the patient is to be released tomorrow at her own request.” 22. The applicant disagreed. She maintained that Y had not requested to leave the hospital, but had been sent home. 23. The applicant further submitted that during her daughter’s stay in the surgical department of Piła Hospital the head of that department commented that “it is absurd to spend a whole week treating an abscess. [Y] is too busy with her bottom, instead of taking care of something else”, referring to the pregnancy. The applicant stated that this comment and its context had humiliated and angered her and her daughter. 24. The Government argued that Piła Hospital maintained that no such comment had been made, either by the head of the department or by any other doctor of that hospital. Also, the Regional Agent for Disciplinary Matters in Poznań, in the course of disciplinary proceedings instituted against doctors who had treated Y, did not confirm the applicant’s allegations. 25. The applicant also submitted that the doctor at Pirogow Hospital had justified not performing a full endoscopy (in August 2004) by referring to his fear of endangering the life of the foetus. The applicant submitted that the doctor had stated that “my conscience does not allow me”, but had not formalised his objection or directed Y to another doctor. 26. The Government argued that during the investigation instituted by the Regional Agent for Disciplinary Matters in Łódź it had been established that none of the doctors at Pirogow Hospital had based their refusal to perform a full endoscopy on a “conscience clause” (klauzula sumienia). The decision not to perform a full endoscopy was taken because there were no medical grounds for such an examination, and not because of Y’s pregnancy. 27. On 6 December 2004 the applicant’s lawyer asked the Łódź District Prosecutor to institute criminal proceedings in relation to the circumstances of the applicant’s daughter’s death. The lawyer submitted medical charts from three hospitals and asked the prosecutor to obtain full medical documentation. The applicant was questioned by the prosecutor on 6 January 2005. 28. On 10 February 2005 the prosecution requested the Collegium Medicum in Kraków and the Medical University in Łódź to issue an opinion as to whether an exhumation would be possible in Y’s case. Both universities replied that an exhumation of Y’s body would not have enabled an opinion to be given on the cause of her death. 29. On 1 March 2005 the prosecutor opened an investigation of possible unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code). 30. On 24 June 2005 the prosecutor decided to appoint an expert from the Forensic Medicine Department of the Collegium Medicum in Kraków, to evaluate the treatment provided to the patient, and to establish whether there was a direct causal link between any irregularities in Y’s treatment and her death. However, Collegium Medicum informed the prosecutor that no autopsy was carried out following the applicant’s daughter’s death, and that exhumation of her body at a later stage would not have enabled an opinion to be given on the cause of death. A similar opinion was issued by the Medical University in Łódź. 31. On 20 July 2005 the Medical Academy in Gdańsk, on 22 July 2005 the Forensic Medicine Department in Szczecin, and on 19 July 2005 the Medical Academy in Warsaw refused to provide an opinion in Y’s case due to their workload in other cases and lack of staff. 32. Meanwhile, on 14 June 2005 the Minister of Health convened a special expert committee to investigate Y’s treatment and the circumstances of her death. The aim of the committee was to inquire in respect of all the hospitals involved in Y’s treatment as regards their organisation and methods of treatment and the availability of those methods. On 15 November 2005 the committee concluded that the death had been directly caused by sepsis. The committee noted however, that during Y’s stay in Pirogow Hospital, despite her history of inflammatory bowel disease the doctors failed to perform a diagnostic imaging test on her abdomen. In addition, an earlier diagnosis of sepsis and the establishment of its original cause in Pirogow Hospital (most probably Lesniewski-Crohn disease) and a possible decision about surgical treatment would have had an impact on Y’s situation. The committee’s report was signed by several national consultants in various fields of health care. Two members of the committee, who were not medical experts, did not sign the report: professor of criminal law E.Z., and W.N., the head of an NGO working in the field of reproductive rights. 33. On 8 August 2005 the prosecutor’s office asked national consultants in gastroenterology, gynaecology and vascular surgery to submit opinions on Y’s treatment. 34. On 12 December 2005 an expert gastroenterologist stated in her opinion that the original cause of sepsis could not be determined due to the fact that an autopsy had not been performed on Y’s body. 35. The investigation of the death of the applicant’s daughter was extended several times. It was then suspended, on 26 May 2006. The prosecutor referred to the need to obtain expert opinions and the fact that the waiting time for such opinions was at least twelve months. 36. Subsequently six medical opinions were submitted to the prosecutor’s office on 12 March, 10 April, 10 May, 4 June, and 27 September 2007, and 25 April 2008. Altogether the prosecution obtained opinions from eight medical experts. The experts were subsequently heard by the prosecutor. 37. During the investigation, there were several changes of prosecutor: at least six prosecutors handled the investigation at different stages. 38. On 10 May 2007 M.K, an expert gastroenterologist, considered it surprising that Y had not undergone an ultrasonographic examination of the abdomen. He further stressed that she could have had an MRI (magnetic resonance imaging) to determine the cause of the abscess. Lastly, an autopsy would have allowed the original cause of the sepsis to be determined. In an additional opinion of 25 April 2008 M.K. considered that in both hospitals, Piła and Pirogow, the doctors failed to do an MRI. However, he stressed that the lack of adequate examination in Y’s case should be treated not as medical malpractice but as lack of due diligence. 39. On 11 June 2008 the District Prosecutor resumed and discontinued the investigation. The prosecutor concluded that on the basis of the experts’ opinions there was no ground for any doubts or objections as to the treatment received by the applicant’s daughter. Failure to conduct an MRI should be considered a lack of due diligence and not medical malpractice. It could no longer be said that an earlier operation would have saved Y’s life. Consequently, no direct link had been established between the treatment and the death of the applicant’s daughter. 40. The applicant appealed. 41. On 5 September 2008 the Lódz District Court upheld the prosecutor’s decision. The court referred to the complicated nature of the case and the fact that no autopsy was performed, and therefore it was impossible to establish whether Y suffered from Lesniewski-Crohn’s disease. The court considered that there were no grounds for continuation of the investigation of Y’s death. 42. The applicant stated that the prosecutor had not obtained the necessary information, such as full medical records, to assist experts in forming their opinions. The Government maintained that the prosecutor had obtained full medical records from all the hospitals attended by the applicant’s daughter in Piła, Poznań and Łódź. 43. The applicant also stated that the prosecutor had the applicant’s daughter. The Government argued that the prosecutor had examined the issue of colonoscopy and the investigation had been focused on Y’s cause of death: in particular, on the question whether her treatment had been adequate to the diagnosis and whether further tests, such as a full endoscopy and a diagnostic imaging test, could have prevented Y’s death. 44. The applicant claimed that the two members of the special expert committee (see paragraph 32 above) who had not signed the report of 15 November 2005 had not been allowed to participate in the committee’s discussions and therefore did not have access to the medical files. The Government disagreed. They drew the Court’s attention to the fact that all the medical specialists had signed the report. 45. On 20 June 2005 the Łódź Regional Agent for Disciplinary Matters (Okregowy Rzecznik Odpowiedzialnosci Zawodowej) (“Disciplinary Agent”) instituted disciplinary proceedings against the doctors who had treated Y. After consulting several experts and hearing witnesses, he concluded that there was no evidence of medical malpractice. During the proceedings the applicant and Y’s fiancé refused to testify before the Disciplinary Agent. The proceedings were discontinued by a decision of 25 October 2006. 46. In late May 2005 the Poznań Disciplinary Agent instituted disciplinary proceedings against the doctors who had treated Y. On 6 December 2006 three specialists from the Wrocław Medical Academy issued a medical opinion, that there was no evidence of medical malpractice. The proceedings were discontinued by a decision of 8 January 2007. 47. The applicant did not appeal against the Poznan and Lodz Disciplinary Agents’ decisions to the Chief Agent for Disciplinary Matters in Warsaw (Naczelny Recznik Odpowiedzialnosci Zawodowej). 48. In September 2007 the applicant had brought a compensation claim in the Łódź District Court against Pirogow Hospital. 49. On 7 April 2009 the applicant modified her claim and asked for 300,000 Polish zlotys (PLN) in compensation. Consequently, the case was transferred to the Łódź Regional Court. 50. On 17 March 2011 the Łódź Regional Court dismissed the applicant’s claim for compensation. The applicant did not appeal against this judgment. In addition, none of the parties asked to be served with the written reasoning of the judgment. 51. There is no indication in the medical files of Y’s stay in Piła Hospital (19 May-1 June 2004) that she had given permission for third parties to have access to these files. For these reasons, in 2004 the hospital refused the applicant access to the medical files 52. Medical files of Y’s stay in Swiecicki Hospital (8 June to 1 July 2004 and 19-28 July) indicate that Y specified that the applicant was entitled to obtain documentation on her stay in the hospital. The hospital granted access to these files to the Lodz District Prosecutor (on 14 March and 9 May 2005 and 27 February 2006) and to the Ministry of Health on 27 June 2005. 53. Medical files in Pierogow Hospital do not indicate that Y allowed third-party access to her medical files. For this reason the hospital refused the applicant access to these files. 54. The Government maintained that the applicant had not requested the Swiecicki hospital to give her access to Y’s files. The applicant disagreed. She submitted, without specifying any details, that she had twice asked the hospital for these files but had not been granted access. 55. The Government submitted that on 1 March 2005 the prosecutor’s office requested the relevant hospitals to provide files on Y’s treatment. In this connection they submitted copies of the prosecutor’s decisions. 56. The applicant disagreed: she claimed that the relevant files were requested only in February and April 2006. 57. Under section 39 of the Medical Profession Act of 1996 (ustawa o zawodzie lekarza i lekarza dentysty) (“the 1996 Act”), as applicable at the material time, a doctor may refuse to carry out a medical procedure, citing her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical procedure concerned can be obtained and to register the refusal in the patient’s medical records. Doctors employed in health-care institutions are also obliged to inform their supervisors of their refusal in writing. 58. Sections 24-26 of the Health-Care Institutions Act of 1991 (ustawa o zakładach opieki zdrowotnej), as applicable at the material time, specified situations in which an autopsy is to be performed. In general, when a person died in a hospital, the authorities might carry out an autopsy unless that person’s statutory representative objected or the patient expressed such a wish whilst alive. However, an autopsy was obligatory if the cause of the patient’s death could not be unequivocally established or in situations specified in the code of criminal procedure. 59. Under section 41 of the 1996 Act and the ordinance of 2001 on types of individual medical documentation, keeping them and detailed conditions of granting access to them (Rozporzadzenie Ministra Zdrowia w sprawie rodzajów indywidualnej dokumentacji medycznej, sposobu jej prowadzenia oraz szczegółowych warunków jej udostepniania) as applicable at the material time, a doctor was obliged to grant access to individual medical files to a patient, his statutory representative or a person authorised by the patient; to another doctor or person authorised to conduct the patient’s treatment; other organs under separate legislation (such as courts or a prosecutor’s office). 60. Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State also includes liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities. 61. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of another human being shall be liable to a sentence of imprisonment between three months and five years 62. The Chambers of Physicians Act of 1989 (ustawa o izbach lekarskich) (“The 1989 Act”) no longer in force, established Chambers of Physicians. The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before organs of the Chambers, agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers. 63. Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years, and being struck off the register of physicians. 64. The agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. When investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant. 65. The agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed.