Communicated on 3 April 2019
FOURTH SECTION
Applications nos. 51282/18 and 51515/18
Branka BIJELIČ against Slovenia
and Anto BIJELIČ against Slovenia
both lodged on 26 October 2018
STATEMENT OF FACTS
1. The applicants, Ms Branka Bijelič and Mr Anto Bijelič, are Slovenian nationals who were born in 1958 and 1950 respectively and live in Logatec. They are represented before the Court by Mr D. Sluga, a lawyer practising in Ljubljana.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
3. On 16 April 2004 the applicants’ son X died as a result of a malignant melanoma.
4. On 16 April 2007 the applicants lodged a claim for damages against the L. Health Care Centre with the Ljubljana District Court. They contended that Dr D., the Centre’s employee who had examined their son, had been negligent (had delayed his treatment) and sought compensation amounting to 20,000 euros (EUR) each in respect of non-pecuniary damage arising from his death.
5. On 3 October 2013 the court dismissed the applicants’ action. It found it established that X had shown a suspicious mole to Dr D. on 19 April 2002 and that it was highly likely that the melanoma had already metastasised at that point. Further, it held that, assuming that the signs of a malignant melanoma had been apparent at the time of Dr D.’s examination, the doctor had not acted negligently by not referring X for testing under an emergency procedure. Finally, the court held that the causal link had in any event been broken because removal of the mole on 19 April 2002 (and not a month and a half later) would not have significantly changed the course of the disease or X’s chances of survival.
6. Following the applicants’ appeal, the L. Higher Court reversed the judgment and granted their claim on the merits (without determining the amount of compensation). It concluded that the referral (napotnica) Dr D. had issued in X’s case had not been prepared in accordance with medical doctrine and practice. Moreover, Dr D. had failed to seek an informed consent. In light of this, it considered that Dr D. had committed a medical error. As regards the question of causal link, the court elaborated on the importance of quick medical response in cases of patients with detected malignant melanoma. It held that the applicants had established that X’s chances of survival would have been higher had Dr D. referred him for further testing under an emergency procedure. The burden of proof that X would have died even if the referral had been issued in compliance with the relevant rules had thereby shifted on the defendant party who had failed to prove this with a required level of conviction.
7. When deciding the appeal on points of law, lodged by the defendant party against the higher court’s judgment, the Supreme Court reversed the impugned judgment and withheld the first-instance court’s judgment. It held that the doctor’s actions would be considered a legally relevant cause of X’s death only if she could and should have prevented it. In this connection, the court observed that the role of the plaintiffs in cases of this nature was to argue (and prove) that the actions the doctor had omitted to take could cure (prevent death of) a significant (considerable) number of patients. On the basis of facts established by the lower courts that:
- the melanoma had highly likely fatally metastasised before Dr D. had seen it on 19 April 2002;
- the chances of survival in that case had been estimated at 5%; and
- the removal of such an aggressive tumour at that moment would not have significantly changed the course of the disease and the success rate of the treatment,
it concluded that the applicants’ son’s death could not have been realistically prevented even if Dr D. had acted differently and that the doctor’s omission at issue could therefore not be considered a legally relevant cause of his death.
8. On 4 June 2018 the Constitutional Court refused to accept a constitutional complaint lodged by the applicants for consideration.
B. Relevant domestic law
9. A summary of relevant domestic law provisions from the Code of Obligations is contained in Šilih v. Slovenia [GC], no. 71463/01, § 95, 9 April 2009.
COMPLAINTS
The applicants complain that the Supreme Court’s view on the absence of causal link between the doctor’s error and their son’s death (based on the premise that the treatment was irrelevant when the chance of the patient’s survival was statistically insignificant), as well as the related standard and burden of proof the applicants were bound to carry, did not give sufficient regard to their son’s right to life. The applicants also complain about the length (more than eleven years in total) of the civil proceedings. They rely on Article 2 and Article 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES
1. Has the respondent State complied with its obligations under Article 2 of the Convention? In particular, have the domestic authorities dealt with the applicants’ case of alleged medical negligence concerning their son’s death in a manner compatible with the procedural requirements of this Article, including the requirement that the proceedings be completed within a reasonable time (see Šilih v. Slovenia [GC], no. 71463/01, §§ 195 and 196, 9 April 2009; Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, §§ 214-221, 19 December 2017; and Fernandes de Oliveira v. Portugal [GC], no. 78103/14, §§ 81 and 137, 29 January 2019)?
Has the Supreme Court’s view on the absence of causal link between the doctor’s error and their son’s death, as well as the related standard and burden of proof the applicants were bound to carry, had sufficient regard to the applicants’ son’s right to life?
2. Was the length of the civil proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?
3. The Government are requested to submit copies of all expert reports submitted in the domestic proceedings.
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