The ECHR judgment of 06 June 2017 in the case of Erdinc Kurt and Others v. Turkey (application No. 50772/11).
In 2011, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Turkey.
In the case, a complaint on the conclusion of a medical examination successfully released the doctors from liability, without considering whether they provided appropriate professional assistance. In the case there was a violation of the requirements of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
The applicants are a married couple and their daughter, who became disabled after two operations. The first operation was aimed at the treatment of a particularly serious congenital heart disease, the second was aimed at eliminating the complication that arose after the first operation, but caused serious neurological damage. Parents sued for compensation in civil courts, and the court of first instance ordered an examination. The extensive conclusion of the literature contained a detailed account of the incidence of complications and the fatal outcome in this type of operation and concluded in the light of very significant risks that there was no negligence on the part of doctors. Claiming that the report did not provide sufficient explanations, the applicants requested a second expert opinion, but without success.
ISSUES OF LAW
Despite the fact that conclusions of the conclusion of the examination are not necessary for the courts, they can have a decisive influence on the evaluation of the latter, since these conclusions affect technical information that is beyond the jurisdiction of the courts. Only if it is determined that the doctors provided appropriate professional assistance during the operation, with due regard to possible risks, the harm caused can be considered as an unpredictable consequence of the treatment. Otherwise, surgeons would never be held accountable for their actions, since any surgical intervention entails a certain degree of risk.
In the present case, the experts had to decide whether the actions of the doctors, regardless of the risk inherent in the operation, caused the damage. However, the expert opinion did not even touch upon this issue. Having based their conclusions solely on the data of the literature testifying to the presence of risks, the conclusion did not consider the factor, whether the doctors acted in accordance with modern medical standards before, during and after the operation. Without being based on any specific data, the findings of the expert judgment on the absence of negligence should have been seen more as an affirmation than as evidence. Consequently, the conclusion contained insufficient explanations on the issue that implied the presentation of the technical point of view. Faced with this shortcoming, the authorities of the respondent State did not take action on the applicants' request for a second examination. Accordingly, the applicants did not receive an adequate response from the courts, taking into account the requirements inherent in protecting the patient's right to physical integrity.
The violation of the requirements of Article 8 of the Convention (unanimously) was committed.
In the application of Article 41 of the Convention. The Court awarded the applicants EUR 7,500 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.