CASE OF MIHU v. ROMANIA
No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)
András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1938 and lives in Sibiu. 6. At 9.55 a.m. on 21 August 2005 the applicant took his son L.M. to the emergency unit of the Sibiu County Hospital, accompanied by their family doctor. L.M. was immediately examined by the doctor on duty, Mr C.C.R., who recorded an initial diagnosis on the observation sheet of “icteric syndrome” (jaundice). Following subsequent tests the diagnosis was changed to "hepatic cirrhosis with gastrointestinal haemorrhage” and the patient was treated with drugs. 7. Dr C.C.R. filled in forms to admit the patient to the gastroenterology unit, as provided for by the hospital’s code of practice for patients with gastrointestinal haemorrhage. However, owing to the fact that the gastroenterology unit was in a separate building and had no elevator, the patient remained in the emergency unit. 8. Despite the treatment he was given, the patient’s condition worsened and at around 1 p.m. he was examined by Dr A.M., a doctor who specialised in intensive care. She recommended that the treatment be continued and ordered blood transfusions. Owing to a lack of beds in the intensive care unit, the patient was not immediately transferred there. 9. At around 5.40 p.m., L.M. was transferred to the intensive care unit. Dr A.M., on duty that night in the unit, came to see L.M. two times. At some point during the night the blood transfusions were stopped. 10. After 6 a.m. the next morning L.M.’s condition began to worsen and he was given blood transfusions again. 11. At around 4.30 p.m., because the patient’s state continued to deteriorate, Dr F.A., the head of the gastroenterology unit, decided to perform an endoscopy of the stomach. The procedure did not succeed because of massive gastrointestinal bleeding. 12. At 5.50 p.m. on 22 August 2005 L.M. was declared dead owing to cardio-respiratory failure. According to the hospital observation sheet, the direct cause of death was upper gastrointestinal haemorrhage, ruptured oesophageal varices, decompensated hepatic cirrhosis and a haemorrhagic duodenal ulcer. 13. On 22 August 2005 the applicant and his wife lodged a criminal complaint against C.C.R. and A.M., accusing them of manslaughter. The applicant firstly complained that, despite repeated requests, Dr C.C.R. had refused to allow the patient to be transferred to another, better equipped, hospital. The applicant also complained of the failure to provide blood transfusions, which he said caused the death of his son, and of the generally poor treatment received by his son in the Sibiu County Hospital. 14. On 19 September 2005 the two doctors were questioned by the Sibiu County Police. Dr C.C.R. explained that the patient’s state of health did not allow him to be transferred to another hospital. He also submitted that a particular medicine, Lactulose, had been missing from the hospital’s pharmacy and that he had asked the applicant to buy it. Concerning the lack of blood for transfusions, the doctor said that that was not his fault and that the hospital had run out of blood that night. In conclusion, the doctor stated that the patient, who was suffering from hepatic cirrhosis, had received the necessary treatment. Dr A.M. said that the patient’s condition had had a poor prognosis, that she had provided the correct treatment and that a transfer to another hospital would not have been possible under the circumstances. 15. The applicant’s statement was taken on 26 January 2006. He reiterated his previous complaints. In addition, he criticised the delay in the administration of Lactulose to his son. 16. An autopsy report issued on 17 April 2006 said that L.M. had not died by violent means. The death was caused by upper gastrointestinal haemorrhage due to the rupture of varices in the oesophagus and a duodenal ulcer in a patient already suffering from hepatic cirrhosis. The report concluded that no issues had been found that could raise questions about the medical treatment received by the patient. 17. On 2 May 2006 the applicant complained to the Sibiu Prosecutor’s Office of excessive delays in the investigation. He also requested a forensic medical expert report to verify whether his son had received the necessary treatment. He included the results of various blood tests made by L.M. between 2000 and 2005, intending to prove that his son had not been ill in the years before his admission to the Sibiu County Hospital. 18. On 30 May 2006 the Prosecutor’s Office of the Sibiu County Court sent a request for a forensic report to the Sibiu County Forensic Service. On 18 August 2006 the Sibiu County Forensic Service replied that it could not deliver such a report because its chief doctor had already performed the autopsy in the same case. Therefore, on 25 August 2006 the request was sent to the Cluj Napoca Forensic Institute. 19. On 20 December 2006 the forensic report was added to the case file and on 4 January 2007 it was made available to the applicant. The report noted that hospital practice had not been adhered to as the patient should have been admitted to the gastroenterology section, given the diagnosis. Nevertheless, the conclusion was that the treatment received by L.M. was adequate and correct and there was no indication of medical error. 20. On 18 January 2007 the applicant submitted objections to the report and requested it to be reanalysed by the Mina Minovici National Forensic Institute in Bucharest. On 24 January 2007 the applicant’s objections to the forensic report were rejected by the prosecutor, who only allowed it to be referred to the Mina Minovici National Forensic Institute for approval. 21. On 4 April 2007, in a one-page letter, the Mina Minovici National Forensic Institute approved the report drafted by the Cluj Napoca Forensic Institute. 22. On 11 April 2007, in a briefly-worded decision based on the forensic medical report, the Prosecutor’s Office of the Sibiu County Court decided not to commence criminal proceedings against the two doctors as there had been no finding of medical errors. That decision was upheld on 13 June 2007 by the chief prosecutor of the same prosecutor’s office. 23. A complaint by the applicant against the two decisions was allowed by the Timişoara District Court on 16 April 2008. The court decided to send the case back to the prosecutor in order to commence criminal proceedings against the two doctors. The court observed that the prosecutors’ decisions had been based only on statements by the two doctors and on the forensic report and held that the investigators in the case needed to clarify whether the patient’s state of health had required his admission to the gastroenterology unit and whether treatment in that unit could have influenced the course of the victim’s illness. The court ordered that such questions should be answered by way of a more thorough investigation, taking statements from doctors specialising in gastroenterology, as well as from other employees of the hospital. In addition, the court requested the prosecutors to clarify, by way of witness statements and confrontations, what was the practice of the hospital in dealing with cases of gastrointestinal bleeding and whether the two doctors had observed that practice. The judgment became final on 10 October 2008 when an appeal on points of law by the two doctors was rejected by the Timiş County Court. 24. On 20 March 2009 the investigation resumed with the questioning of Dr P.P.J., a gastroenterologist employed at the Sibiu County Hospital, and on 23 March 2009 of Dr F.A., who had performed the endoscopy on L.M. On 25 March 2009, C.C.R. and A.M., the two doctors under investigation, were questioned for a second time. 25. On 27 March 2009 the Prosecutor’s Office of the Sibiu County Court again found no fault in the actions of the two doctors. That decision was communicated to the applicant on 26 May 2009. On 18 June 2009 a complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office. The applicant took his case against those decisions to court. 26. On 7 June 2010 the Timisoara District Court allowed the applicant’s complaint and ordered the reopening of criminal proceedings, considering that the questions raised in its judgment of 16 April 2008 had still not been answered. The court held that, bearing in mind the seriousness of the case, which involved the death of a man, the investigation should have been more detailed and the applicant’s allegations should have been more thoroughly checked. More specifically, the court noted that the applicant had maintained, among other things, that L.M. had been healthy and had never previously been admitted to hospital and that there had been delays in the administration of a particular drug and in giving blood transfusions. However, the medical reports had said that the deceased was suffering from an ulcer and cirrhosis. The court also reasoned that, even if it could be accepted that rapid changes could occur in such conditions, it was hard to believe that the victim had had no previous symptoms and had not been under the supervision of medical professionals prior to 22 August 2005. In view of the above, the court further requested that the prosecutors take statements from the family doctor and gather evidence about the victim’s state of health prior to his admission to the Sibiu County Emergency Hospital. 27. On 24 December 2010 the investigation resumed with a letter being sent to the Sibiu Police in which the prosecutor requested their assistance in obtaining a statement from the victim’s family doctor, as well as copies of any medical documents she might have concerning the victim’s state of health prior to his hospital admission on 21 August 2005. In January 2011 the family doctor, M.L.I., gave a statement to the police. She recalled that, during an examination in December 2004, L.M. had presented with signs of hepatic distress and that she had recommended various tests. The tests had come back showing results that were slightly above the norm, so she had advised him to see a gastroenterologist. 28. Dr F.A. was again questioned on 27 January 2011. Two doctors who had been on duty when L.M. was admitted were questioned in February 2011. They did not remember any relevant details about the case. 29. On 25 July 2011 the Prosecutor’s Office of the Sibiu County Court, considering it established that the applicant had been suffering from cirrhosis well before August 2005 and that nothing could have been done to save his life, decided not to press criminal charges against the two suspects on the grounds that they had not committed any criminal act. A complaint by the applicant against that decision was rejected as ill-founded by the chief prosecutor of the same prosecutor’s office on 23 August 2011. 30. A complaint by the applicant against the prosecutors’ decisions of 25 July and 23 August 2011 was allowed by the Timisoara District Court on 21 December 2011. The court considered that all the facts had still not been clarified by the investigation and again ordered the reopening of criminal proceedings. Specific instructions were again given to the prosecutors. The court noted that, in order to observe the equality of arms and to guarantee a fair trial, the applicant should have been consulted on which witnesses to hear and given the opportunity to call doctors of his own choice as witnesses. The court further reiterated the instructions given in its previous judgments in the case, which it did not consider had been carried out by the prosecutor. Finally, the court ordered the prosecutor to conduct a speedier investigation, bearing in mind that a long time had passed since the lodging of the applicant’s complaint and that the inquiry had been totally ineffective up to that point. 31. The investigation was reopened on 21 February 2012. On 27 February 2012 a statement from the applicant was taken by the prosecutor. He stated that he did not know the names or addresses of the medical staff on duty at the time of the incident. He further requested a confrontation with the two doctors under investigation. 32. On 29 February 2012 the prosecutor asked the Sibiu County Emergency Hospital for a list of employees on duty on the two days of L.M.’s stay in hospital. On 21 March 2012 the hospital replied that it no longer had the duty sheets as that type of document was only kept for three years. 33. On 4 April 2012 two doctors specialising in gastroenterology, called as witnesses by the applicant, testified before the prosecutor that the diagnosis and treatment applied by Drs C.C.R. and A.M. had been correct in the circumstances. They noted that the only drug capable of removing blood from the stomach in order to prepare the patient for an endoscopy under the proper conditions was not available in Romania at that time. 34. A confrontation between C.C.R., A.M. and the applicant took place on 3 May 2012. 35. Between 11 and 20 April 2012 the prosecutor took statements from several employees of the Sibiu County Emergency Hospital. They all declared that they did not remember anything about the patient L.M. 36. By a decision issued on 8 June 2012 the Prosecutor’s Office of the Sibiu County Court ended its criminal investigation, finding no guilt in the actions of the two doctors. The prosecutor noted that according to the hospital’s practice, the patient should have been admitted to the gastroenterology unit but that this had not been possible because the unit did not have an elevator for wheeled beds. However, the prosecutor observed that all the medical reports drafted in the case had concluded that the patient’s diagnosis had been correct and that he had had the appropriate treatment. This conclusion was also confirmed by the two specialists called as witnesses by the applicant. The prosecutor stated that the endoscopy performed before the patient’s death had been rendered more difficult owing to the absence in the country of the drug needed to clear blood from the patient’s stomach. With regard to the applicant’s complaint concerning the doctors’ failure to administer blood transfusions, the prosecutor held that the patient’s death had been caused not only by anaemia but also by hepatic insufficiency. 37. The prosecutor’s decision was upheld on 16 July 2012 by the head prosecutor of the Prosecutor’s Office of the Sibiu County Court. 38. A complaint by the applicant against those two decisions was rejected with final effect on 19 November 2012 by the Timişoara District Court. The court, quoting widely from the prosecutor’s decision of 8 June 2012, held that the investigation had correctly led to the conclusion that there was no proof of fault by the two doctors. 39. On 19 October 2005 the applicant and his wife lodged a disciplinary complaint against Drs C.C.R. and A.M. 40. The disciplinary committee of the Sibiu County College of Doctors opened an investigation into the patient’s death, collecting documents from the patient’s medical file and taking statements from the doctors who had treated him. It gave its decision on 27 February 2006, ruling that no medical errors had been made. 41. The applicant objected to the committee’s conclusions and his appeal was examined by the superior disciplinary committee of the National College of Doctors. 42. On the basis of the evidence presented to it, on 7 December 2006 the National College of Doctors terminated the disciplinary proceedings against Drs C.C.R. and A.M. Relying on the medical documents in the file and on the opinion of a university professor, the authority considered that it had been established that no medical errors had been made. 43. The applicant and his wife brought an action for the quashing of the decision adopted on 7 December 2006, pointing to the failure by the two doctors to provide appropriate treatment for their son. 44. On 5 June 2007 the Sibiu County Court dismissed the action as illfounded and upheld the decision of the National College of Doctors. 45. An appeal by the applicant against that judgment was allowed by the Braşov Court of Appeal on 26 February 2008. The case was sent to the Braşov County Court for rehearing because the lower court had not examined any evidence other than the documents in the file, which had been the sole basis for its decision. 46. On 13 February 2013 the Braşov County Court took note of the fact that the applicant and his wife no longer wished to pursue the proceedings and closed the case.