ECHR Decree of 19 December 2017 in the case of Lopes de Sousa Fernandes v. Portugal (application No. 56080/13).
In 2013 the applicant was assisted in the preparation of the application. Subsequently, the application was communicated to Portugal.
The case successfully examined the applicant's complaint that her husband's death was caused by infection in the hospital due to negligence and medical malpractice, that the disciplinary, criminal and civil authorities she applied to did not establish the exact cause of the sudden deterioration in her health her husband, on the duration and outcome of domestic proceedings. The case involved a violation of the requirements of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
CIRCUMSTANCES OF THE CASE
In November 1997, after an operation to remove nasal polyps, the applicant's husband started bacterial meningitis, which was diagnosed only two days after he was discharged from the hospital. He was hospitalized several times, he suffered from acute pain in the abdomen and diarrhea. The applicant's husband died three months after the operation as a result of blood poisoning caused by peritonitis and perforation of the hollow organ of the gastrointestinal tract.
In 1998, the applicant lodged a complaint with the authorities, alleging that she had not received explanations from the hospital why her husband's health had suddenly deteriorated and his death had come. In response to her letter, the Inspector General of Health initiated an investigation, and then, in 2006, a disciplinary procedure against one of the doctors, which was suspended pending a criminal case started in 2002. Criminal proceedings ended in 2009 with the excuse of a doctor on charges of causing death due to gross negligence. In a separate hearing, the Regional Disciplinary Council of the Medical Association decided not to take any further action, concluding that there were no data on violation of discipline or medical malpractice. Finally, the claim for damages brought by the applicant in 2003 was rejected by the decision of 2012, which was subsequently upheld by the Supreme Administrative Court in 2013.
In the conventional proceedings, the applicant complained under Article 2 of the Convention about the death of her husband as a result of infection in the hospital with an infection due to negligence and medical malpractice. She also complained that the disciplinary, criminal and civil authorities she applied to did not establish the exact cause of her husband's sudden deterioration in health, the length and outcome of domestic proceedings.
On December 15, 2015, the Chamber of the European Court issued a five-vote "yes" with two against the ruling, according to which the case was violated the requirements of Article 2 of the Convention (the right to life) in its substantive aspect - and unanimously there has been a violation of the requirements of Article 2 of the Convention in its procedural aspect.
ISSUES OF LAW
Concerning compliance with Article 2 of the Convention. (a) The substantive aspect. The Court has explained its approach to the issue of medical negligence as follows.
In the context of alleged medical malpractice, the substantive positive obligations of States related to medical care are limited by the obligation to form an effective regulatory framework, according to which hospitals (private or public) must take adequate measures to protect the lives of patients. Even in cases in which medical negligence was established, the Court usually establishes a substantive violation of Article 2 of the Convention if the relevant regulatory framework does not provide adequate protection for the patient's life. If the authorities of the respondent state have adopted adequate legislation to ensure high professional standards for medical workers and protect the lives of patients, problems such as the wrong decision made by medical personnel or negligence in coordinating their actions in the treatment of a particular patient can not be considered sufficient to attract state authorities party to responsibility in terms of their positive obligations to protect life in accordance with Article 2 of the Convention.
The question of non-fulfillment by the authorities of the state of their regulatory duties requires a specific, and not an abstract assessment of the alleged shortcomings. In this regard, the Court's task is usually not to assess in abstracto applicable law and law enforcement practice, but to determine whether the way in which they were applied or influenced the applicant violated the requirements of the Convention. Thus, the fact that the regulatory framework may in some respects be unsatisfactory is not sufficient to raise the issue in accordance with Article 2 of the Convention. It must be proved that the regulations have caused damage to the patient.
In addition, it should be emphasized that the authorities' obligation to regulate this issue should be considered in a broader sense, which includes the obligation to ensure the effective functioning of this regulatory framework. Consequently, the regulatory responsibilities cover the necessary measures to ensure supervision and enforcement.
On the basis of this broader understanding of the duty of States to provide a regulatory framework, the Court has recognized that, under the very exceptional circumstances described in paragraphs (a) and (b) below, the responsibility of the respondent Government in accordance with the substantive aspect of Article 2 of the Convention may arise in relation to acts or omissions on the provision of medical care, namely, if (a) the life of a particular patient is deliberately jeopardized by the denial of access to a vital emergency This exclusion does not apply to circumstances where the patient is deemed to have received insufficient, incorrect or untimely assistance; (b) when systemic or structural deficiencies in the provision of medical services have led to the deprivation of the patient's access to essential emergency assistance, and the authorities knew or should have known about this threat and failed to take the necessary measures to prevent its implementation, thereby jeopardizing the patient's life.
The Court is aware that, based on the facts of the case, it may sometimes be difficult to distinguish between cases involving simple medical negligence and cases where there is a denial of access to vital emergency assistance, especially if a combination of factors leading to the death of a patient may arise. In order to assign the case to the latter category, the following conditions must be achieved collectively: (i) the actions and inaction of persons providing medical care must go beyond mere error or medical negligence if doctors rendering medical care in violation of their professional duties refuse the patient in emergency medical care, although they understand that a person's life is threatened because of the lack of this assistance; (ii) this shortcoming should be objectively and effectively defined as systemic or structural to be attributed to public authorities, and it should not simply concern itself with a specific case where something may be inappropriate in the sense of improper or poor functioning; (iii) there must be a causal link between the impaired fault and the harm caused to the patient; (iv) this deficiency should result from a failure by a State to fulfill its obligations to provide a regulatory framework in the broader sense outlined above.
In the circumstances of the present case, the Court found that there was insufficient evidence of (i) denial of medical care, (ii) a systemic or structural defect involving hospitals where the applicant's husband was being treated, or (iii) guilt attributed to health professionals beyond the scope of a mere error or medical negligence or non-performance by medical professionals of their professional duties in providing emergency medical care. Thus, the case involved allegations of medical negligence, which meant the following: the substantive positive obligations of the Portuguese authorities were to create an adequate regulatory framework that obliges hospitals, private or public, to take effective measures to protect the lives of patients. In view of the detailed rules and standards introduced in the legislation and practice of the respondent State in the field under consideration, the Court concludes that the relevant regulatory framework does not indicate a flaw in the State's obligation to protect the right to life of the applicant's husband.
In the case, the requirements of Article 2 of the Convention were not violated (adopted by 15 votes "for" with two - "against").
(b) The procedural aspect. The Grand Chamber of the European Court recalled that the procedural obligation in accordance with Article 2 of the Convention in the context of the provision of medical assistance required, inter alia, that the proceedings be completed within a reasonable time. In addition to the task of respecting the rights inherent in Article 2 of the Convention in each case, due process of medical malpractice in a hospital is also important for the safety of all recipients of health care services. The duration of all three national proceedings in the applicant's case (disciplinary, criminal and civil) was unreasonable.
In addition, for the purposes of the procedural obligation under Article 2 of the Convention, the scope of an investigation confronted with complex issues arising in the medical context can not be interpreted as limited to the time and direct cause of the death of a person. If there is a prima facie provable statement about the sequence of events possibly caused by an allegedly reckless act that could lead to the patient's death, in particular, as regards the allegation of infection in the hospital, an investigation could be expected from the authorities. In the present case, no such proceedings were conducted, and the courts of the respondent State, instead of conducting a general evaluation, considered the events as a succession of medical incidents, not paying particular attention to how they could be interconnected. As a result, the domestic system as a whole, faced with a provable case of medical negligence, which resulted in the death of the applicant's husband, did not provide an adequate and timely response consistent with the State's obligation under article 2 of the Convention.
The violation of the requirements of Article 2 of the Convention (unanimously) was committed in the case.
In the application of Article 41 of the Convention. The Court awarded the applicant EUR 23,000 in respect of non-pecuniary damage, the claim for compensation for pecuniary damage was rejected.