ECHR ruling dated July 19, 2018 in the case of Sarishvili-Bolkvadze (Sarishvili-Bolkvadze) v. Georgia (application N 58240/08).
In 2008, the applicant was assisted in the preparation of the application. Subsequently, the complaint was application to Georgia.
The case complains about the ineffectiveness of the rules on the protection of patients' lives and the absence of a legal remedy to obtain compensation for moral damage caused by death caused by medical negligence. The case was a violation of Article 2 of the Convention.
THE CIRCUMSTANCES OF THE CASE
In 2004, the applicant's son was placed in the intensive care unit of the hospital with an injury, and a month later he died there. A commission of medical specialists found that a medical error was made during the treatment. Since the applicant refused to give permission for the autopsy, and subsequently for the exhumation of the body, the investigation was terminated in 2008 due to the fact that the prosecution authorities could not establish a causal link between the alleged medical negligence and the death of the applicant's son. In the meantime, the civil courts concluded that medical negligence was the cause of the death of the applicant's son and that the hospital carried out unlicensed activities in a number of areas of medicine and some of the medical staff of the hospital did not have permission to independently provide medical assistance. The applicant was awarded EUR 2,700 in respect of pecuniary damage. Claims for compensation for non-pecuniary damage were rejected because Georgian legislation did not provide for compensation for non-pecuniary damage caused by the violation of the applicant's relative’s right to life.
QUESTIONS OF LAW
Regarding compliance with Article 2 of the Convention. (a) Substantive aspect. With regard to alleged medical negligence, the positive obligation of the authorities of the respondent State was limited to the obligation to put in place an effective regulatory framework that obliges hospitals to take appropriate measures to protect the lives of patients. Only in two extremely exceptional cases can a state be held responsible for the actions or inaction of health workers (see the judgment of the Grand Chamber of the European Court of Justice in the Lopes de Souza Fernandes v. Portugal (Lopes de Sousa Fernandes v. Portugal) of December 19, 2017, Complaint N 56080/13).
Since in the present case there was no question of deliberately creating a danger to the life of a particular person by denying access to reanimation treatment, this case did not belong to the first exceptional category of cases involving the responsibility of the state. Thus, the European Court had to consider, in accordance with the criteria established in the Lopes de Souza Fernandes v. Portugal case, whether the case was in the second group of exceptions, that is, there were systematic or structural deficiencies in the operation of the hospital systems, which led to that the applicant's son was deprived of access to reanimation treatment, and the authorities knew or should have known about this risk and did not take the necessary measures to prevent the occurrence of this possibility.
As for the first criterion of the four, it was not established that the actions of medical workers would go beyond the bounds of a simple medical error or medical negligence in that they, in violation of their professional duties, did not apply resuscitation treatment to the patient, despite the fact that fully aware that the patient’s life would be in danger if treatment was not provided. Expert opinions, as well as the findings of the court on this issue, indicated that medical negligence and medical errors had occurred, and not the patient’s deprivation of treatment as such. Although some of the 29 doctors who participated in the treatment of the applicant's son did not have sufficient qualifications, the case file proved that the emergency surgical operation was performed by a specialist whose qualifications had never been challenged. According to most experts, the possible delay in the operation was due to medical error. Consequently, the first criterion was not met, and the case did not apply to the second exceptional category of cases, meaning the responsibility of the state.
As to whether the authorities of the respondent state fulfilled their control function, the hospital carried out unlicensed activities in several areas, including in relation to the applicant's son, in the field of cardiology and blood transfusion. Also, several doctors participating in the treatment of the applicant's son did not have the necessary licenses or qualifications in violation of the requirements of Georgian legislation. Although there was a legal basis for complying with the relevant licensing requirements, the authorities of the respondent state did not explain how these norms were applied in practice, if they were applied at all. Therefore, in the opinion of the European Court, there has been a violation of the substantive and positive duty of the authorities of the respondent state to establish a well-functioning regulatory framework that ensures compliance with applicable standards aimed at preserving the lives of patients.
(b) The procedural aspect. (i) Criminal remedy. The decision to discontinue the criminal proceedings on the death of the applicant's son was not taken hastily or arbitrarily. It was properly motivated and based, among other things, on the findings of relevant forensic medical examinations that it was impossible to establish a causal link between medical negligence and the death of a patient without opening or exhumation, for which the applicant repeatedly refused to give permission. Moreover, the prosecutor showed particular zeal and wrote to the competent ministry that the medical error in the present case required “taking appropriate measures to prevent such violations”. Therefore, the termination of the medical negligence proceedings did not violate the procedural requirements of Article 2 of the Convention.
(ii) Civil remedy. When considering a civil lawsuit against the hospital, facts relating to the applicant's complaint were successfully established. However, Georgian legislation did not provide the close relatives of the deceased person with the opportunity to claim compensation for non-pecuniary damage in cases of the death of a relative due to medical error. Given the psychological stress of the applicant due to the death of her son, an absolute and unconditional legislative prohibition unreasonably prevented the applicant from claiming the amount of compensation for moral harm with the help of domestic remedies available to her.
RESOLUTION
A violation of the substantive aspect of Article 2 of the Convention was made in the case (adopted unanimously).
The case did not violate the requirements of the procedural aspect of Article 2 of the Convention in relation to the criminal remedy (adopted unanimously).
The case was breached in the procedural aspect of Article 2 of the Convention in relation to a civil remedy (adopted unanimously).
COMPENSATION
In application of Article 41 of the Convention. The applicant did not submit any claim for damages.