V.V.G. v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"
Inadmissible
Dmitry Dedov;Elisabeth Steiner;Erik Møse;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković
1. The applicant is a Macedonian national, who was born in 1966 and lives in Skopje. The President authorised, of her own motion, the non-disclosure of the applicant’s identity (Rule 47 § 3 of the Rules of Court). 2. The Macedonian Government (“the Government”) were represented by their Agent, Mr K. Bogdanov. 3. The facts of the case, as submitted by the parties, may be summarised as follows. 4. On 27 August 2002 the applicant was admitted in a private hospital M.B. in Skopje (“the hospital”) for an induced labour. On that day, she gave birth to her son with the assistance of doctor S.T.C. According to a discharge notice dated 1 September 2002 issued by company S.M. (a company which ran the hospital), the applicant had been diagnosed as having suffered, as a result of the childbirth, from ruptura perinei gradus I (perineal tear). The applicant received a general anaesthetic so that doctor S.T.C. could repair the tear. 5. On 6 December 2002 the applicant was examined in the hospital and diagnosed as suffering from ruptura perinei gradus II. She underwent surgery recorded as perineoplastica. On 7 December 2002 she was discharged from the hospital. The discharge notice was signed by doctors S.T.C. and B. 6. Between 6 and 10 February 2003 the applicant was a patient in a gynaecological hospital in Skopje, where she had further surgery: colpoperineoplastica cum levatororraphia carried out by doctor N. On admission she was diagnosed as suffering from ruptura perinea cicatricialis gradus II. 7. Between March and December 2003 the applicant was examined in several hospitals in Skopje. Some noted that she was suffering from a prolapsed or descending uterus. 8. On 21 January 2003 the applicant and her new-born son lodged a criminal complaint with the public prosecutor, accusing doctor S.T.C. of a serious offence against health and medical malpractice (see paragraphs 20 and 21 below). They alleged that doctor S.T.C. had failed to carry out an episiotomy and prevent rapid delivery, which had led to rupture of skin and muscles. Furthermore, doctor S.T.C. had failed to repair the damaged tissues, despite the fact that a general anaesthetic had been administered to the applicant for that purpose. Doctor S.T.C. had left the wound to heal spontaneously, increasing the risk of sepsis. Because of those errors the complainants had sustained serious bodily injuries: notably the applicant had descending organs with an attendant risk of prolapse. She had further been required to undergo plastic surgery, as a result of which she had been suffering from depression. The newborn child had acquired a large bulge on his head, and this had had negative consequences over his breastfeeding reflexes. 9. On 28 May 2003 the public prosecutor requested that an investigating judge of Skopje Court of First Instance (“the trial court”) take certain measures regarding the applicant’s criminal complaint. On 1 September 2003 the investigating judge requested that the Forensic Institute (Институт за судска медицина и криминалистика) draw up an expert report on whether standard childbirth procedures had been applied in the applicant’s case; whether wounds after delivery had been correctly treated, and whether the plastic surgery had been necessary. She further interviewed the applicant, doctors S.T.C. and B. 10. On 18 May 2004 the Forensic Institute drew up a report which stated (1) it was at the discretion of the doctor, depending on the circumstances of each case, whether to carry out an episiotomy; (2) a general anaesthetic had been administered and the rupture caused after delivery had been repaired, and (3) the medical evidence suggested that a fresh rupture of a second degree had occurred, which had required further surgery. The latter had not been of a corrective nature. At the request of the public prosecutor, on 23 May 2005 the Forensic Institute drew up, on the basis of available medical evidence, an additional expert report according to which (1) there was no evidence that failure to carry out an episiotomy had caused prolapsed organs or that the baby had sustained any head injuries; (2) the subsequent medical treatment of the applicant had produced inconsistent evidence in this respect. In any event, any genital prolapse had occurred later; and (3) genital descent or partial prolapse could cause minor health problems. 11. During the investigation, the applicant contacted the public prosecutor on several occasions to provide additional evidence and relevant literature in support of her complaint. 12. On 7 July 2006 the public prosecutor lodged an indictment with the trial court charging doctor S.T.C. with serious offences against health and medical malpractice punishable under Articles 207 § 3 and 217 § 3 of the Criminal Code (see paragraphs 20 and 21 below). The trial court held several hearings, at which it heard oral evidence from the applicant, the accused, and doctors B. and N. (see paragraphs 5 and 6 above), as well as the expert who had signed the expert reports of the Forensic Institute. It also requested a third expert opinion, which the Forensic Institute drew up on 8 January 2008. That report stated that it had been at the defendant’s discretion whether to carry out an episiotomy. Furthermore, the available evidence indicated that doctor S.T.C. had promptly and adequately repaired the rupture after the delivery. 13. On 28 March 2008 the trial court acquitted doctor S.T.C., finding no evidence of professional misconduct at the time the applicant gave birth to her son on 27 August 2002 or immediately afterwards. In view of that conclusion, the court considered it irrelevant to establish whether the applicant’s health had seriously deteriorated, notably whether she had genital prolapse. In the absence of any evidence of misconduct on the part of doctor S.T.C., there was no need to establish any causal link between any of the applicant’s health problems and the conduct of the accused. 14. On 14 May 2008 the public prosecutor appealed. At a public hearing held on 3 September 2008 Skopje Court of Appeal overturned the trial court’s judgment and dismissed the indictment against doctor S.T.C. (се одбива обвинението) finding that the absolute time-bar of six years (calculated from the date of commission of the alleged crime) had expired. 15. On an unspecified date, insolvency proceedings were opened against the company S.M. In the course of those proceedings, on 23 January 2003 the applicant and her son sought recognition of their compensation claim regarding the alleged medical malpractice of doctor S.T.C. On 14 May 2003 an insolvency trustee (стечаен управник) disputed the claim and advised the claimants to pursue it by means of a separate civil action. 16. On 3 June 2003 the applicant and her son instituted separate civil proceedings before the Skopje Court of First Instance in which they claimed, under section 55 of the Medical Protection Act and section 157 of the Obligations Act (see paragraphs 24 and 25 below), compensation from the hospital and the company S.M. in respect of the alleged damage sustained during the birth on 27 August 2002. On 14 October 2005 the applicant’s son withdrew from the case. During the hearing before the civil court, the applicant argued, inter alia, that the defendants should be held objectively responsible for the damage sustained and that the criminal proceedings against doctor S.T.C. had no bearing on the outcome of the civil proceedings. Those proceedings (criminal) could only be relevant for the defendants’ right to claim reimbursement of the compensation awarded for doctor S.T.C.’s negligence (see paragraph 26 below). 17. On 11 December 2006 the Skopje Court of First Instance, sitting as a civil court, relying on sections 11(3) and 201(2) of the Civil Proceedings Act 2005 (see paragraphs 27 and 28 below) stayed the proceedings pending the outcome of the criminal proceedings against doctor S.T.C. On 15 March 2007 the applicant appealed against this judgment, reiterating that the defendants’ objective responsibility for the damage sustained had not depended on the courts’ finding of criminal liability on the part of doctor S.T.C. Furthermore, she alleged that section 11(3) of the Civil Proceedings Act had been inapplicable to her case, given the fact that the civil and criminal proceedings concerned different defendants. On 12 November 2009 Skopje Court of Appeal confirmed the lower court’s judgment, reiterating that the finding of criminal liability on the part of doctor S.T.C. was a preliminary issue (претходно прашање) relevant for the outcome of the civil case. 18. The applicant did not seek resumption of the compensation proceedings, since, according to her, that would offer no prospect of success. In this connection she submitted copies of documents regarding organisational, capital and other changes in the company S.M. that happened over the years. 19. Under Article 107 § 5 of the Criminal Code, prosecution of offences subject to a prison sentence of more than a year becomes statute-barred three years after the offence was committed. Article 108 § 6 of the Criminal Code provides for an absolute time-bar on prosecutions which is twice the time-bar specified under law. 20. Article 207 §§ 1 and 2 of the Criminal Code concern medical malpractice (несовесно лекување болни) and provide for a fine or a maximum prison sentence of three years in case of medical negligence. In case of unintentional medical negligence, the law provides for a fine or a prison sentence of a maximum of one year (sub-paragraph 3). 21. Article 217 § 3 of the Code concerns serious offences against health (тешки дела против здравјето на луѓето) and provides for a prison sentence of between three months and three years in case of serious bodily harm or grave deterioration of the health due to medical negligence (in relation to Article 207 § 3). 22. Section 101 provided that the (criminal) court was responsible for deciding on a civil-party claim. If the court found the accused guilty as charged, the victim could be awarded full or partial compensation (section 101(2)). 23. In case of an acquittal or dismissal of the prosecution, if the proceedings were stayed or the indictment was rejected, the court was to advise the victim to pursue his or her civil-party claim by way of civil proceedings (section 101(3)). 24. Section 55 provided for compensation for damage sustained due to errors or medical malpractice in accordance with tort rules. 25. Section 157 provides that an employer is responsible for damage caused by an employee in the performance of his or her duties or in relation to them. A victim can claim compensation directly from the employee if the damage was caused intentionally. The employer can seek reimbursement of the compensation awarded to the victim from the employee if he or she caused the damage intentionally or negligently. 26. Section 189 provides for the right to claim just satisfaction in respect of physical or mental pain; disfigurement; damage to reputation, honour, rights and freedoms; and fear. 27. Under section 11(3) of the Civil Proceedings Act, civil courts are bound by judgments given by criminal courts finding an accused guilty, in respect of the commission of the offence and the convict’s criminal liability. 28. Under section 201(2), a civil court may stay proceedings if the decision depended on whether an offence subject to State prosecution had been committed, who the perpetrator was, and if he or she was found guilty. 29. If the proceedings are stayed for the reasons specified in section 201(1) and (2) of this Act, the proceedings will resume after final conclusion of the proceedings whose the outcome was relevant for the civil proceedings, or if the court finds no reasons to await their termination (section 203(3)). 30. The Government submitted copies of final court judgments in which courts had awarded damages for non-pecuniary loss sustained due to medical negligence in birth or abortion cases brought against public hospitals. In those cases, the courts awarded damages notwithstanding that no criminal proceedings had been brought against the doctors responsible (4П-684/06; П.бр.417/07; П-333/09; XXXIIIП1-4418/10 and XIXП1-5127/12). They also submitted a copy of a judgment in which a public hospital was ordered to pay non-pecuniary damages because of medical error committed by a doctor who had been found guilty of “serious crimes against health” and sentenced to a suspended prison sentence (VII П.бр.205/08). 31. Lastly, they provided a copy of a final judgment in which the courts accepted a compensation claim concerning defamatory statements the defendant (a journalist) had made in a weekly newspaper. The compensation claim was brought after criminal proceedings instituted by the claimant against the defendant had been stayed because of the absolute limitation period. In the judgment, the courts found that the termination of the criminal proceedings had not been binding on the civil courts in respect of the claimant’s action for damages (П1.бр.5466/10).