Published on 23 May 2022
SECOND SECTION
Application no. 55294/17
Virgilia CĂLDĂRARI and Lilian CĂLDĂRARI
against the Republic of Moldova
lodged on 21 July 2017
communicated on 3 May 2022
SUBJECT MATTER OF THE CASE
The application concerns a case of alleged medical negligence and the lack of effective investigation into the allegations of medical malpractice. In particular, a general anaesthesia for a dental extraction performed on 23 November 2011 on the second applicant – the first applicant’s eight‑year‑old son – resulted in a cardiac arrest and cerebral coma for several months, which left him with severe neurological damage and complete paralysis. The criminal investigation, initiated at the first applicant’s request on 18 September 2012, was discontinued on several occasions on the ground that no criminal offence was committed and was reopened every time by the investigating judge who found deficiencies in the investigation. The last reopening was ordered on 17 February 2017.
The applicants complain about a violation of their rights under Articles 3, 8 and 13 of the Convention, maintaining that the second applicant’s health deteriorated severely due to medical negligence and that they lacked an effective remedy by which to assert their rights in the civil proceedings.
QUESTIONS TO THE PARTIES
1. Have the applicants exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, was the criminal complaint an effective remedy within the meaning of this provision in respect of the applicants’ complaint of medical negligence (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 215, 19 December 2017; Scripnic v. the Republic of Moldova, no. 63789/13, § 37, 13 April 2021)?
2. Was the second applicant subjected to inhuman and degrading treatment in view of the alleged inadequate medical assistance he received on 23 November 2011 (in particular, but not exclusively, the administration of halothane as an anaesthetic drug)? If so, was there a violation by the State of its positive obligations under Article 3 of the Convention in this respect? In the alternative, was the second applicant’s right to moral and physical integrity, as guaranteed by Article 8 of the Convention, breached in the present case (see Vilela and Others v. Portugal, no. 63687/14, §§ 73‑75, 23 February 2021 and the references cited therein)?
3. Did the investigation conducted by the domestic authorities satisfy the procedural requirements of Articles 3 and/or 8 of the Convention (see Mehmet Ulusoy and Others v. Turkey, no. 54969/09, §§ 90-93 and 117, 25 June 2019)?
4. Did domestic law, as applied in the instant case, provide the applicants with an effective remedy enabling the establishment of the possible liability of the practitioner or the medical establishment concerned for the physical injuries alleged and, if necessary, obtaining adequate civil redress, as required by Article 13 of the Convention?
The Government are requested to submit copies of the relevant documents in the applicants’ case, and other information on the use of halothane and the position of the expert witnesses on the matter in the Republic of Moldova.