Wrong prenatal diagnosis for twin pregnancy and birth of a baby. The national courts in medical malpractice must act quickly and effectively.
JUDGMENT
Eryiğit v. Turkey 10.04.2018 (no. 18356/11)
SUMMARY
Disappearance of a newborn baby. Prenatal diagnosis of three hospitals for twins while only one baby was born. The national courts have awarded damages for non-pecuniary damage. The applicants considered that they had not been properly compensated by the disappearance of the second newborn. In accordance with the ECtHR in cases of medical negligence there must be a direct reaction of the authorities and there should be no tolerance for illegal acts. The 12-year period for judicial review of the case was excessive and unreasonable and violated Article 8 (right to respect for private and family life) of the European Convention as regards its procedural component.
PROVISION
Article 8
PRINCIPAL FACTS
The applicants are seven Turkish nationals who were born between 1956 and 1998 and live in Istanbul.
The case concerned an erroneous prenatal diagnosis.
On 7 November 1997 Hava Eryiğit (“the first applicant”), who was pregnant, was taken to the Süleymaniye Hospital. The medical diagnostic established that she was expecting twins. Ms Eryiğit was transferred to the Şişli Etfal Hospital where, after an ultrasound, doctors reached the same diagnosis. She was ultimately transferred to the Zeynep Kamil Hospital. The following day, on 8 November 1997, Ms Eryiğit gave birth to one baby. The applicants lodged a criminal complaint for the disappearance of a newborn baby.
At the close of a criminal investigation the prosecutor discontinued the proceedings on the grounds that there had been an erroneous diagnosis on account of Ms Eryiğit’s excess weight and that there had never been a twin baby. The Istanbul Administrative Court dismissed the applicants’ action on
the grounds that there had merely been an error in diagnosis and that such errors occurred frequently. The Supreme Administrative Council set aside that judgment and held that Ms Eryiğit should be awarded damages in respect of the suffering caused by the absence of a second child as diagnosed.
Relying in particular on Article 8 (right to respect for private and family life), the applicantsconsidered that they had not been duly compensated, having regard to the damage sustained by their families on account of the disappearance of a second newborn. They also alleged that their case had not been examined promptly and effectively.
THE DECISION OF THE COURT
Infringement of Article 8 (procedural part)
The Court recalls that, according to settled case-law, the physical integrity of the person undoubtedly falls within the concept of ‘privacy’ within the meaning of Article 8 § 1 of the Convention
As regards the error of diagnosis, in the light of the foregoing, it must be concluded that the administrative court has recognized the liability of the administration and has ordered the award of compensationfor the damages suffered by the first applicant.
This compensation can not be regarded as inadequate as it is in line with the amounts granted by the Court in similar cases. With regard to the refusal of the courts to award damages separately for each of the applicants, the national courts are more competent to decide on in this regard, and so the ECtHR can not agree with the applicants’ argument.
The Court held that an appropriate legal instrument existed against the alleged infringement and that the applicants could no longer claim to be ‘victims’ within the meaning of Article 34 of the Convention and therefore there was no violation of the substantive part of Article 8.
As regards the procedural part of Article 8, the applicants argue that the authorities’ reaction to their claims was not immediate or effective.
In this case, it should be noted that the administrative court dealt with the case on 26 October 1998 and that the irrevocable domestic decision was issued on 20 July 2010 by the Council of State. It is also noted that the award decision was executed on 31 December 2010. For the Court, this 12-year period does not meet the reasonable time requirement. It can not be accepted that a procedure to shed light on complaints of medical negligence may take such a long time in national law. The immediate reaction of the authorities is necessary to maintain public confidence, respect for the rule of law and to avoid any appearance of tolerance in illegal acts.
Thus, the ECtHR held that the national authorities did not deal with the applicants’ case with the level of diligence required by Article 8 of the Convention. Consequently, the Court concludes that that provision has been infringed in its procedural limb.
Violation of Article 8 (procedural limb)
Just satisfaction: EUR 3,000 (non-pecuniary damage) and EUR 2,000 (costs and expenses) to the applicants jointly(echrcaselaw.com editing).
