New born with permanent mental disability. Condemnation from the Court for ineffective investigation of any medical malpractice.

JUDGMENT

Ulusoy v. Turkey 25.06.2019  (no. 54969/09)

see here

SUMMARY 

Medical negligence and state responsibility. Insufficient and ineffective research to detect medical negligence in the prenatal process and the process of delivery. Implementation of Article 8 on matters relating to the protection of the moral and physical integrity of individuals in the context of healthcare provision.

Applicants’ complaint that the permanent and irreversible disability of their son due to medical negligence during prenatal process and during the delivery process. Lack of effective investigation of their claims. Indeed, the authorities were unable to provide a consistent and scientifically based response to the allegations in their complaints or to evaluate the potential liability of health professionals with full knowledge of the facts. Infringement of the procedural part of the right to respect for privacy.

However, the ECtHR held that the present complaints were largely an incorrect assessment of prenatal risks during childbirth. Consequently, the Court held that the case concerned mainly allegations of simple medical errors. The substantial positive obligations of the state are limited to the introduction and implementation of an effective institutional framework for patient protection. Moreover, in the light of the legal framework in force at the time of the facts, no breach was noted by the State. No violation of the essential part of Article 8 (protection of the moral and physical integrity of individuals in the context of providing medical care).

PROVISION 

Article 8

PRINCIPAL FACTS 

The applicants, Zeynep Ulusoy and Sebahattin Ulusoy, are Turkish nationals who were born 1979
and 1970 respectively and live in Malatya (Turkey). They were acting on their own behalf and on that
of their son, Mehmet Ulusoy, who was born in 2001 and has been suffering from a psychomotor
impairment and a permanent mental deficiency since birth.

In 2001, during the first months of her pregnancy, Ms Ulusoy attended Regional Heath Centre no. 2
in Nevşehir, complaining of oedema and high blood pressure. Subsequently she moved to Malatya,
where she was examined on 3, 13 and 17 July 2001 (eight month of pregnancy) at the civilian
hospital, once again complaining of diffuse oedema and high blood pressure.

On 20 July 2001 Ms Ulusoy lost consciousness and was taken to hospital. However, she went back
home without being examined. According to the Government, she decided, on her own initiative,
not to undergo an examination owing to her prejudice against being examined by a male doctor.
According to the applicants, the doctors had refused to examine her and to prescribe tests
(ultrasound scan and X-ray), suggesting that she should attend their private surgeries.

On 30 July 2001, ten days before the presumed date of birth, Ms Ulusoy returned to hospital, where
she was immediately prepared for a normal delivery. Finding herself unable to give birth, she
underwent a major episiotomy. On birth the child, who was displaying cyanosis and asphyxia, and
had to be revived and placed in an incubator. The next day his state of health worsened, and he was
transferred to the İnönü university hospital, where physicians observed that his brain functions had
been damaged owing to a lack of oxygenation.

At various dates the applicants unsuccessfully commenced disciplinary proceedings, criminal
proceedings (lodging a complaint) and administrative proceedings (claim for damages). During these
proceedings Ms Ulusoy’s medical file went missing.

THE DECISION OF THE COURT…

Article 8 (right to respect for private life)

1. Substantive limb (protection of the moral and physical integrity of individuals in the context of
the provision of medical care). Reiterating its judgment in the case of Lopes de Sousa Fernandes v. Portugal
, the Court pointed out that in cases of alleged medical negligence, provided that a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of
the lives of patients, matters such as an error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient were not sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 8 of the Convention. The substantive positive obligations were limited to the duty to lay down rules, that is to say, to put in place an effective statutory framework requiring both public and private hospitals and health professionals to adopt the appropriate measures to protect their patients’ integrity. Thus, even where medical negligence had been established, the Court would normally only find a violation of the substantive limb of Article 8 if the applicable statutory framework failed to duly protect patients, or else if the requisite measures to ensure the effective implementation of the regulations in force had not been adopted.

In the instant case, Mr and Ms Ulusoy neither explicitly nor implicitly alleged that their son’s
permanent disability had been caused deliberately, or that he had been the victim of a systemic or
structural dysfunction affecting the hospitals in question. Nor was there any verifiable evidence to
suggest that the health professionals concerned had knowingly deprived them of access to
emergency treatment or that the errors which they had allegedly committed had been more than
mere medical mistakes or negligence. The applicants’ complaints broadly concerned an erroneous
evaluation of the prenatal risks during the labour and childbirth phases of Ms Ulusoy’s pregnancy.
The case therefore primarily concerned allegations of simple medical errors or negligence.
Consequently, the substantive positive obligations on Turkey were confined to the effective
introduction and implementation of a statutory framework capable of protecting patients. Again, the
statutory framework in force at the material time did not, per se, display any infringement on the
part of the State, nor did the applicants complain of any shortcoming of that nature. There had
therefore been no violation of the substantive limb of Article 8.

2. Procedural limb (investigation into the allegations of medical negligence)

The Turkish legal system had provided the applicants with remedies which, theoretically, fulfilled the
requirements to be met under the procedural obligations of Article 8. Furthermore, the applicants
had availed themselves of all the relevant remedies. However, all the proceedings, of a disciplinary,
criminal and administrative nature, had proved ineffective.

First of all, the disciplinary proceedings had been the subject of a discontinuance decision based on
an expert report drawn up by the Deputy Head Medical Officer of the hospital. That report had also
been central to the criminal investigation which had proved unsuccessful in the absence of
authorisation for the opening of proceedings against the medical staff concerned. The regulations
laid down in Law no. 4483 highlighted a structural problem as regards the procedural obligations in
the present case. Furthermore, the experts who had played a dominant role in obtaining the
discontinuance of the criminal investigations had been doctors working in the hospital employing
the health professionals involved, which had run counter to the requirement on both formal and
practical independence which had to be met in expert assessment procedures.

Secondly, in the framework of the administrative proceedings, the applicants had not been involved
in the appointment of the experts or the choice of questions to be put to them. Moreover, despite
the incompleteness of the report submitted by the board of experts on 26 May 2006, the
administrative court had decided to reject the applicants’ request for a fresh expert assessment.
Subsequently, the Supreme Administrative Court had disregarded their request for a new report
despite their detailed arguments. Lastly, the judgments delivered had remained silent on the matter
of any responsibility on the part of the authorities for the loss of the medical file. According to the
Supreme Administrative Court, however, that amounted to serious negligence on the part of the
authorities and an impediment to judicial review of the question whether the ministry was
responsible for the damage caused to the applicants.

Consequently, the Court held that no authority had been able to provide a consistent and
scientifically based response to the applicants’ allegations and complaints or to assess the possible
responsibility of the health professionals with full knowledge of the facts. Indeed, in their decisions the domestic courts had relied on the official reports which had been established either in breach of
the independence requirement or which had avoided or unsatisfactorily addressed the main
questions to be decided. Furthermore, the administrative courts had dismissed the applicants’
objections by overlooking their arguments, which had been, if not decisive, at least central, requiring
specific and explicit responses. Accordingly, the Court considered that, confronted with arguable
complaints from the applicants alleging that medical negligence had led to their son’s irreversible
disability, the national system as a whole had failed to provide an appropriate response that was in
accordance with Turkey’s obligation under Article 8 of the Convention. There had therefore been a
violation of the procedural limb of that provision.

Article 3 (prohibition of inhuman or degrading treatment)

The applicants had not specifically applied to the domestic authorities to complain of any treatment
contrary to Article 3 which they had personally sustained, or mentioned any grievance in that regard
during the various sets of proceedings. That complaint was therefore rejected for non-exhaustion of
domestic remedies.

Just satisfaction (Article 41)

The Court held that Turkey was to pay the applicants 15,000 euros (EUR) in respect of non-pecuniary
damage and EUR 103 in respect of costs and expenses(echrcaselaw.com).


ECHRCaseLaw

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