AS TO THE ADMISSIBILITY OF
by Regina RINKŪNIENĖ
European Court of Human Rights (Second Section), sitting
on 1 December 2009 as a Chamber composed of:
Ireneu Cabral Barreto,
Kristina Pardalos, judges,
and Sally Dollé, Section Registrar,
Having regard to the above application lodged on 10 November 2008,
Having deliberated, decides as follows:
The applicant, Ms Regina Rinkūnienė, is a Lithuanian national who was born in 1944 and lives in PanevėZys.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 14 September 2004 the applicant’s husband P.R. fell ill. On 15 September a doctor, V.D.S., who worked at the Aukštaičių Family Clinics, visited him at his home and prescribed him certain medication. The next days P.R.’s medical condition had not improved and he had a fever of up to 40 degrees. The applicant succeeded in contacting V.D.S. only on 20 September. In the evening of the same day P.R.’s condition substantially worsened and the medical emergency service took him to the PanevėZys hospital. On 22 September, at the applicant’s request, blood samples were taken from her husband. On 24 September P.R. was found to have septicaemia and was transferred to the intensive care unit.
On 26 September 2004 the applicant’s husband died in the PanevėZys hospital. The clinical diagnosis of his death, recorded in the hospital’s documents, was sepsis. That diagnosis was not confirmed by an autopsy, since the applicant refused one.
The applicant requested the State Medical Audit Inspection to appraise the quality of the medical services which V.D.S. and the Aukštaičių Family Clinics had provided to her husband. On 15 December 2004 the State Medical Audit Inspection produced an expert report (no. 1A-201-533K) which stipulated that, while treating the applicant’s husband, V.D.S. had made certain mistakes. In particular, given that P.R.’s condition was not improving, the doctor had not used all available means to establish factors which would have been important for determining the proper treatment. “That is to say, having suspected pneumonia [the doctor] did not immediately send the patient for an X-ray examination, did not assess the effectiveness of the prescribed medication, and did not send the patient to hospital, as [the applicable medical instructions] required”. Lastly, the experts noted that the head of the Aukštaičių Family Clinics had not been carrying out the Health Minister’s instructions on medical care effectively.
The State Medical Audit Inspection ordered the head of the Aukštaičių Family Clinics to assure adherence to the ministerial requirements and to evaluate the doctor’s actions. On 25 January 2005 the State Medical Audit Inspection was informed that V.D.S. had received a disciplinary sanction by way of a warning.
On 27 July 2005 the applicant initiated civil proceedings against the Aukštaičių Family Clinics, the PanevėZys hospital and V.D.S., alleging that the medical personnel had failed to carry out their duties properly and that this had caused her husband’s death.
On 30 December 2005 the PanevėZys Regional Court ordered the Mykolas Romeris University Forensic Medical Institute (the “FMI”) to conduct a deontological examination as regards the circumstances and cause of P.R.’s death. Four experts took part in the examination.
On 27 February 2006 the FMI presented its results in report no. EDM 36/06 (01). The report stipulated that P.R. had died from sepsis, noting however that the cause of death had only been established on the basis of a clinical diagnosis. Given that there was no autopsy report, the actual cause of death remained uncertain.
The report also stated that, when treating the applicant’s husband, V.D.S. had acted properly and without undue delay. The experts concluded that V.D.S.’s actions had no direct causal link with the death, since the treatment she prescribed was in accordance with the patient’s condition. They also stated that applicable legislation did not empower a family doctor to compel her patient to go to hospital [against his will]. Lastly, the experts found the treatment at the Aukštaičių Family Clinics to have been appropriate to the patient’s medical condition.
As regards the treatment which P.R. received at the PanevėZys hospital, the experts again found it to have been adequate, with the exception of the treatment which P.R. had received in the hospital’s intensive care unit. Yet the experts noted that it was not possible to ascertain what influence the latter had had on P.R.’s death, since no autopsy had ever been performed.
In sum, there was no direct causal link between either the actions of V.D.S. or the PanevėZys hospital’s personnel and the death of the applicant’s husband.
On 15 June 2007 the applicant requested the PanevėZys Regional Court to order a supplementary expert report. She noted that the two expert reports, no. 1A-201-533K and no. EDM 36/06 (01), had been contradictory. In the applicant’s view, the FMI’s experts were partial and it was necessary to create a new expert commission which would evaluate the quality, objectivity and plausibility of the two previous reports, as well as establish the actual cause of her husband’s death and whether the treatment he had received had been appropriate and effective. That commission was also to establish whether the medical personnel who had treated her late husband had breached any applicable medical instructions.
By a decision of 5 July 2007, the PanevėZys Regional Court dismissed the applicant’s lawsuit as unfounded. The court’s arguments and reasoning were set out in six pages. The applicant’s lawyer took part in that hearing.
Whilst noting the State Medical Audit Inspection’s report about certain defects in V.D.S.’s and Aukštaičių Family Clinics’ actions, the court nevertheless emphasised that those flaws were of an organisational character (organizacinio pobudZio) and had no causal link to the quality of medical services which were provided to P.R. The court furthermore noted that there were no grave doctors’ mistakes, which the Commission for the Assessment of Doctors’ Professional Competence would have established.
Referring to the Supreme Court’s guidelines in medical negligence cases and having examined the FMI’s deontological report no. EDM 36/06 in the light of other evidence, the PanevėZys Regional Court found that report credible. It stressed that the cause of death of the applicant’s husband had only been established from clinical characteristics (pagal klinikinius poZymius). Yet, as both experts had noted in their written reports and in person at the hearing, in the absence of an autopsy it had not been possible to ascertain the exact cause of death.
From all the above, the court concluded that the applicant had failed to prove that the doctors had acted in breach of applicable medical norms. Neither had the applicant proved a causal link between the doctors’ actions and her husband’s death. The PanevėZys Regional Court also observed that the evidence in the case ruled out the doctors’ negligence. The court did not address the applicant’s request for a supplementary expert examination. Lastly, the PanevėZys Regional Court ordered the applicant to cover the other parties’ litigation costs in the sum of 8,089 Lithuanian litai (approximately 2,343 euros).
The applicant appealed, arguing that the two expert reports were contradictory, and requested the Court of Appeal to order a new expert examination into the circumstances of her husband’s death. She also claimed that the first-instance court had ordered her to cover the other parties’ litigation costs for too high a sum.
On 13 November 2007, at the hearing of the Court of Appeal, the applicant’s lawyer requested that the experts of the State Medical Audit Inspection and the FMI be summoned for questioning in open court. The Court of Appeal granted that request. The lawyer further requested that a new expert examination be carried out, arguing that the two reports were contradictory. The court decided to resolve that question after the lawyer submitted the request in writing and formulated his questions to the experts.
It transpires from the record of the hearing of the Court of Appeal that on 19 May 2008 the applicant’s lawyer again requested the court to order a new expert examination. Given that other parties to the proceedings objected to that request, the Court of Appeal decided to adjourn the hearing until 22 May 2008.
On 22 May 2008 the applicant’s lawyer reiterated his request for a supplementary expert report. Having considered the lawyer’s request on the spot, the chamber decided to adjourn the determination of this issue until the parties had made their final submissions. Having heard the parties’ summings-up, the Court of Appeal adjourned its decision until 5 June 2008.
On 5 June 2008 the Court of Appeal dismissed the applicant’s appeal. The court acknowledged that V.D.S. had made certain errors of judgment by not exhausting all means available to diagnose P.R.’s illness, and by not consulting other doctors when his condition did not improve. Yet the appellate court found no proof that those errors had been the direct cause of P.R.’s death. The court also had regard to the FMI’s deontological report to the effect that the measures which V.D.S and the Aukštaičių Family Clinics had undertaken were adequate for the physical condition of P.R. The court noted that the FMI’s conclusions were confirmed and elaborated by four experts, who testified before both the first-instance and the appellate courts. For the latter, the applicant’s allegation that the FMI’s experts had been partial and not objective was unfounded, even though their conclusion contradicted that of the State Medical Audit Inspection. On the contrary, the court noted that those experts were well qualified, with scientific and pedagogical degrees in their respective fields of medicine.
As to the treatment which P.R. had received in the PanevėZys Hospital’s intensive care unit, the Court of Appeal acknowledged that it had been inadequate. However, given that the applicant herself refused to allow an autopsy, it was not possible to establish what influence that inadequate treatment could have had on P.R.’s death. Consequently, the first-instance court was correct in not finding a causal link between the actions of the PanevėZys Hospital doctors and the death of the applicant’s husband.
Lastly, the Court of Appeal found that the award of litigation costs which the applicant was ordered to pay was in accordance with the recommendations prescribed by the Ministry of Justice.
The applicant lodged a cassation appeal, complaining that the lower courts had not allowed her claim for pecuniary and non-pecuniary damages. She further alleged that the first-instance and appellate courts had evaluated the evidence wrongly, that the expert examination had not been thorough and that important factual circumstances had not been established.
By a ruling of 5 September 2008, the Supreme Court refused to examine the cassation appeal, noting that the applicant’s claim in respect of pecuniary and non-pecuniary damages was intrinsically related to her allegation of an erroneous examination of the factual circumstances, but the latter did not fall within the Supreme Court’s jurisdiction. The applicant submitted new cassation appeals. However, on 6 and 21 October and 27 November 2008 the Supreme Court dismissed them as lodged out of time.
B. Relevant domestic law and practice
The Law on the Medical Practice of Physicians (Medicinos praktikos įstatymas) stipulates that a doctor who has made a grave error when practising the profession can be deprived of his or her licence. The State Medical Audit Inspection is one of the bodies which can propose that a licence be withdrawn (Article 6 §§ 1 (3) and 3). Moreover, the doctor who has breached the requirements of this law is answerable under the domestic law and regulations (Article 11). Furthermore, a special body – the Commission for the Assessment of Doctors’ Professional Competence – exists to assess the professional qualifications of doctors (Article 12).
Article 3 § 2 of the Law on the Rights of Patients and Compensation for Damage to their Health (Pacientų teisių ir Zalos sveikatai atlyginimo įstatymas) stipulates that patients must be accorded qualified health care. Pursuant to Article 14 § 3, the damage suffered by patients as a result of the culpable actions of a physician is to be compensated in accordance with the procedure established by the Civil Code.
Article 6.263 § 2 of the Civil Code provides that any pecuniary damage caused to another person must be fully compensated by the responsible person. Article 6.250 § 2 allows compensation for non-pecuniary damage incurred due to health impairment or a deprivation of life. As regards medical negligence specifically, in the ruling of 25 April 2005 no. 3K-3-222/2005 the Supreme Court confirmed this right, specifying that, in case of a person’s death, the spouse, parents and children have the right to request compensation for non-pecuniary damage for their loss. Lastly, Article 6.264 of the Civil Code provides that an employer is liable to compensation for damage caused by the fault of employees in the performance of their service (official) duties.
Article 178 of the Code of Civil Procedure stipulates that the parties must prove their claims. Pursuant to Article 185, the court evaluates the probative value of evidence according its own inner belief, basing its conclusions on a comprehensive and objective examination of the facts of the case. Unless the Code provides otherwise, no evidence has predetermined value.
In its ruling No. 15 of 13 June 1997, the Supreme Court noted that, when an issue of possible medical negligence arises, the deontological expert report constitutes a critical piece of evidence. Moreover, when evaluating a deontological report, the court must also have regard to the comprehensive and objective evaluation of the circumstances of the case in an open hearing and in the light of all the evidence gathered in the case.
The applicant complained that the refusal of the domestic courts to order a supplementary expert examination, and to hold the doctors accountable for the death of her husband, amounted to a violation of her civil rights in breach of Article 6 § 1 of the Convention. She also submitted that the sum which she was ordered to pay for the respondents’ litigation costs was too high and not fully justified.
Invoking Article 6 § 1 of the Convention, the applicant claimed that the Lithuanian courts had failed to investigate the circumstances of her husband’s death properly. Regardless of the fact that the two expert reports on the subject had been contradictory, both the PanevėZys Regional Court and the Court of Appeal refused to grant her lawyer’s request for a new expert examination which, in her opinion, would have dispelled uncertainties as to the cause of death and helped to identify the culprits.
The Court notes that the applicant argued that her husband had died as a result of professional negligence on the part of the doctors and that the guilty have been left unpunished. It considers that the applicant has thereby raised, in substance, a complaint under Article 2 of the Convention, which, in so far as relevant to the present case, reads as follows:
“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally ...”
Court recalls that the first sentence of Article 2 obliges the State
not merely to refrain from “intentionally” causing death,
but also to take adequate measures to protect life (see Calvelli
and Ciglio v. Italy [GC],
no. 32967/96, § 48, ECHR 2002 I). The Court has also held that the positive obligation on the State to protect life includes the requirement for hospitals to have regulations for the protection of their patients’ lives (see Işıltan v. Turkey, no. 20948/92, Commission decision of 22 May 1995, DR 81-B, pp. 39 and 40). As a result, the Court accepts that it cannot be excluded that acts or omissions of health care authorities may in certain circumstances engage the State’s responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, the Court does not consider that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000 V).
For the Court, the events leading to the tragic death of a patient and the responsibility of the health professionals involved are matters to be examined in the light of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny – not least for the benefit of the applicant. The Court has attached particular weight to the procedural requirement implicit in Article 2 of the Convention. In its opinion, and with reference to the facts of the instant case, the obligation at issue extends to the need for an effective independent system for establishing the cause of death of an individual under the care and responsibility of health professionals and any liability on the part of the latter (see Powell, cited above).
Turning to the instant case, the Court observes that V.D.S. and the
other medical practitioners concerned were subject to a legislative
framework regulating their activities. The Court notes the existence
of legal provisions as well as the Supreme Court’s guidelines
in medical negligence cases which allow persons who claim to have
been victims of medical malpractice to bring proceedings for both
pecuniary and non-pecuniary damage
(see Relevant domestic law above). The Court is therefore satisfied that a sufficient legal framework for securing high professional standards among health professionals as well as their liability existed at the material time (see, mutatis mutandis, Calvelli, cited above, § 51).
In addition, the Court observes that in the present case the applicant had an opportunity to have her claims of medical negligence considered by independent judicial authorities who gave them due consideration. The Lithuanian courts based their conclusions on two expert reports and four experts were summoned to shed light on the circumstances of P.R.’s illness and death. They testified before both the first-instance and appellate courts. The Court does not find that the applicant was placed at a procedural disadvantage vis-à-vis the medical institutions or V.D.S., given that throughout civil proceedings she was represented by a lawyer whose motions, except for the request for a third expert report, were granted. In particular, on 13 November 2007 the applicant’s lawyer requested the Court of Appeal to summon the experts of the State Medical Audit Inspection and the FMI for questioning, which motion was granted.
reference to the applicant’s allegations that the Lithuanian
courts ignored discrepancies in the experts’ reports, the Court
emphasises that, in accordance with Article 19 of the Convention, its
only task is to ensure observance of the obligations undertaken by
the States Parties to the Convention. In particular, the assessment
of evidence and its probative value are primarily a matter for the
domestic authorities: the Court is not competent to deal with an
application alleging that errors of fact or law have been committed
by domestic courts, except where it considers that such errors might
have involved a possible violation of any of the rights and freedoms
set out in the Convention (see Erikson v. Italy (dec.),
no. 37900/97, 26 October 1999). In the light of the Court’s conclusions in the preceding paragraph and all the materials submitted to it, the Court cannot conclude that the Lithuanian courts restricted the applicant’s opportunities to prove her case or that they assessed the evidence before them arbitrarily. Overall, even if the Court of Appeal’s silence as regards the applicant’s call for a third expert report could be regarded as a procedural flaw, the Court does not find that this aspect alone had the effect of reducing the effectiveness of the examination of the doctors’ responsibility for the death of her husband.
Of particular significance for the Court is the fact that it was open to the applicant to request an autopsy of her late husband’s body. As unequivocally noted, the experts of the FMI and, relying on them, both the PanevėZys Regional Court and the Court of Appeal considered that, without an autopsy, it was not possible to determine exactly the cause of death and any related negligence. The Court finds therefore that the applicant denied herself an essential element – satisfying the positive obligations arising under Article 2 – to elucidate the matter.
Having regard to the above considerations, the Court finds that the Lithuanian authorities cannot be held responsible for not having carried out an adequate investigation under Article 2 of the Convention into the husband’s death.
Consequently, the Court concludes that the present complaint does not disclose failure by the respondent State to comply with its positive obligations, including procedural requirements, imposed by Article 2 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and 4 of the Convention.
Finally, as to the applicant’s complaint that the award against her for litigation costs was too high and unsubstantiated, the Court repeats that it is not a court of appeal from the decisions of domestic courts and that, as a general rule, it is for the latter to determine such matters (see, mutatis mutandis, Kemmache v. France (no. 3), 24 November 1994, § 44, Series A no. 296 C). In the light of the circumstances of the present case and the considerations above, the Court does not find anything arbitrary in the costs award. It follows that this part of the application also must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Sally Dollé Françoise