CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

FOURTH SECTION

CASE OF LOPES DE SOUSA FERNANDES v. PORTUGAL

(Application no. 56080/13)

JUDGMENT

STRASBOURG

15 December 2015

THIS CASE WAS REFERRED TO THE GRAND CHAMBER WHICH DELIVERED JUDGMENT IN THE CASE ON 19/12/2017

This judgment may be subject to editorial revision.

In the case of Lopes de Sousa Fernandes v. Portugal,

The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:

András Sajó, President,
Vincent A. De Gaetano,
Nona Tsotsoria,
Paulo Pinto de Albuquerque,
Krzysztof Wojtyczek,
Iulia Antoanella Motoc,
Gabriele Kucsko-Stadlmayer, judges,
and Françoise-Elens-Passos, Section Registrar,

Having deliberated in private on 10 November 2015,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1. The case originated in an application (no. 56080/13) against the Portuguese Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Portuguese national, Mrs Maria Isabel Lopes de Sousa Fernandes (“the applicant”), on 23 August 2013.

2. The applicant was given leave to present her own case in the proceedings before the Court (Rule 36 § 2 in fine of the Rules of Court). The Portuguese Government (“the Government”) were represented by their Agent, Ms M.F. da Graça Carvalho, Deputy Attorney-General.

3. The applicant alleged a substantive and procedural violation of Article 2 of the Convention on account of the death of her husband. Relying on Articles 6 § 1 and 13 of the Convention, she also complained about the duration and outcome of the domestic proceedings she had brought in that connection.

4. On 13 October 2014 the Government were given notice of the application.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5. The applicant was born in 1969 and lives in Vila Nova de Gaia.

A. The circumstances of the death of the applicant’s husband

1. Treatment in Vila Nova de Gaia Hospital

6. On 26 November 1997 the applicant’s husband was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy (removal of nasal polyps).

7. The operation took place the following day without particular incident.

8. On 28 November 1997 at 10 a.m. the applicant’s husband left hospital and returned home. He returned to the emergency department of the CVHNG at 1.30 a.m. the following day suffering from violent headaches. He was examined by the doctors on duty, in particular by a neurologist. The doctors diagnosed psychological problems and prescribed tranquilisers. They recommended that he leave hospital but the applicant objected.

9. At 9 a.m. that day the applicant’s husband was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture, which revealed that he had bacterial meningitis (Pseudomonas).

10. At 3.30 p.m. he was transferred to the hospital’s intensive care unit.

11. On 30 November 1997 a scan revealed a cerebral oedema.

12. The applicant’s husband left intensive care on 5 December 1997 following an improvement in his clinical condition. He was transferred to the hospital’s general medical D. ward, where he was under the care of Dr J.V.

13. On 10 December he was diagnosed with two duodenal ulcers.

14. On 13 December the applicant’s husband was discharged from hospital as his condition was considered to be stable.

15. Five days later he returned to the CHVNG emergency department suffering from vertigo and headaches. He was examined by Dr J.V., who kept him under observation since he had acute diarrhoea, abdominal pain and severe anaemia.

16. On 19 December an endoscopy was performed which showed that the applicant’s husband had a gastroduodenal ulcer.

17. He left hospital on 23 December and medication was prescribed.

18. The applicant’s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the hospital’s emergency department. He was examined by Dr J.V., who did not consider it necessary to admit him. He therefore returned home the same day.

19. On 25 January 1998 the applicant’s husband was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests also showed up the presence of the Clostridium difficile bacterium.

20. The applicant’s husband was placed on a drip and treated with antibiotics.

21. At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. He prescribed oral treatment and referred the applicant’s husband for further treatment in the hospital’s outpatient department.

2. Treatment in Santo António General Hospital in Oporto

22. On 17 February 1998 the applicant’s husband went to Santo António General Hospital in Oporto. He was admitted the same day after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including pseudomembranous colitis, an infection with the Clostridium difficile bacterium, and Crohn’s disease. All these possibilities were subsequently ruled out.

23. The condition of the applicant’s husband worsened.

24. On 5 March 1998 he was examined by a doctor who judged the situation to be under control. His condition deteriorated the following day. He was examined by a doctor who diagnosed a possible perforated viscus. An X-ray and an abdominal ultrasound were carried out, which showed ascites in the abdomen. At 5.30 p.m. the applicant’s husband was again examined by a doctor. A sigmoidoscopy was performed which showed that he had rectocolitis. As his abdominal pain was worsening, it was decided that he should undergo surgery.

25. On 7 March 1998 at 1 p.m. the applicant’s husband was placed on oxygen.

26. At 3 p.m. he was examined by a general physician and thirty minutes later by a surgeon. The latter, noting the existence of widespread peritonitis, decided that an immediate operation was needed. The applicant’s husband entered the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. and left it an hour and a half later, unconscious. He died the following day at 2.55 a.m.

27. According to the death certificate issued by Santo António Hospital, the applicant’s husband died from septicaemia caused by peritonitis and a perforated viscus.

B. The proceedings brought by the applicant

28. On 13 August 1998 the applicant wrote a joint letter to the Ministry of Health, the regional health authority for the North region and the Medical Association. She stated that she had received no response from the hospitals by way of explanation for the sudden deterioration in her husband’s health and his death.

1. Proceedings before the Inspectorate General for Health (internal case no. 111/00 PA)

29. On 30 October and 23 December 1998 the regional health authority for the North region sent the applicant copies of the reports drawn up by the CHVNG and Santo António Hospital on the basis of her husband’s medical records.

30. On 30 May 2000 the applicant requested an update on progress in the proceedings from the regional health authority, stating that she had still received no clear explanations concerning the events preceding her husband’s death. In a letter of 5 July 2000 the authority informed her that the file had been sent to the Inspectorate General for Health (IGS) with a view to the opening of an investigation.

31. In an order of 20 September 2000 the Inspector General for Health ordered an investigation (processo de averiguações).

32. On 6 November 2001 an inspector was appointed to head the investigation.

33. On 7 February 2002 the IGS informed the applicant that evidence would be taken from the members of the medical team which had treated her husband and that an expert medical report would be prepared.

34. The applicant gave evidence on 3 April 2002.

35. On 23 September 2002 medical expert reports were requested. Reports prepared by experts in the fields of general medicine, gastroenterology and general surgery were submitted in November 2002. According to the reports, it would not have been possible to save the applicant’s husband’s life in view of the deterioration of his state of health after the nasal polypectomy.

(a) First decision

36. The report of the investigation was submitted on 28 November 2002. It found, on the basis of the expert medical reports received, that the treatment administered to the applicant’s husband had been appropriate.

37. In an order of 12 December 2002 the Inspector General for Health declared the investigation closed, finding that there had been no medical negligence and that there were no grounds for instituting disciplinary proceedings against the doctors who had treated the applicant’s husband.

38. In a letter of 17 February 2003 the applicant appealed against the order. She argued that the final report had not answered her questions, complaining about areas of uncertainty and about the duration of the investigation and its findings.

39. On 28 March 2003 the Inspector General for Health informed the applicant that he had set aside the order of 12 December 2002 and ordered the reopening of the investigation.

(b) Second decision

40. On 26 September 2005, in view of the questions raised by the applicant, the medical experts were requested to provide additional information.

41. A fresh investigation report was submitted on 23 November 2005, clarifying the facts and taking account of the answers provided by the three medical experts. The report stated that there were no grounds for criticising the health-care personnel who had been involved in the care of the applicant’s husband in the CHVNG and Santo António Hospital, as the patient had received proper and appropriate medical assistance in terms of his diagnosis, supervision and treatment. The report further noted that his discharge had been justified on each occasion in view of the improvement in his state of health. The report concluded as follows:

“The results of the investigation ... following the reopening of the proceedings and the fresh inquiries and medical reports do not indicate that there was any negligent or careless conduct in breach of good medical practice. There is therefore no need to take legal or disciplinary action against any persons involved in the [patient’s] care ...”

42. Taking this report into account, the Inspector General for Health made a fresh order discontinuing the proceedings on 27 December 2005.

43. In a letter of 1 February 2006 the applicant appealed against that order, complaining of unclear points and omissions. She also raised the possibility that the sudden deterioration in her husband’s health and his eventual death might have been caused by bacteria present in the operating theatre on the day of the nasal polypectomy, that the diagnoses may have been made in haste and that there may have been negligence and carelessness in the medical treatment administered to her husband. She therefore requested the reopening of the investigation and the preparation of a fresh expert medical report.

44. The Inspector General for Health wrote to the applicant on 2 March 2006 informing her that he had set aside his previous order and ordered fresh expert assessments to be carried out by different experts in the fields of internal medicine and gastroenterology.

(c) Third decision

45. The applicant gave evidence again on 27 April 2006.

46. The medical experts submitted their reports on 20 May and 10 July 2006. The expert in gastroenterology stated that it was possible, albeit rare, for a nasal polypectomy to cause meningitis. He further considered that the applicant’s husband had received appropriate treatment but that his discharge on 3 February 1998 may not have been wise in view of his clinical condition. The expert concluded that the applicant’s husband had suffered a series of complications which were uncommon but could occur, and that he had received proper medical care at the CHVNG. As to his care in Santo António Hospital, the expert considered that the applicant’s husband’s condition had been extremely complicated and had given rise to doubts as to the best way to proceed. In his report, the expert in internal medicine rejected the idea of a hospital-acquired infection on the grounds that, had that been the case, the antibiotics administered to the patient would have had no effect. In his view, the meningitis had developed unexpectedly. He further took the view that the applicant’s husband’s discharge on 3 February 1998 had been appropriate but that he should have continued to be monitored as an outpatient.

47. On 25 July 2006 a report was drawn up on completion of the investigation, which concluded as follows:

“...

The content of the most recent expert medical reports shows ... that there are no grounds for a finding of disciplinary liability for negligence against any of the health‑care professionals involved in A.’s medical treatment ...

... the decision by the assistant doctor [J.V.] to refer the patient for outpatient treatment was not appropriate and sufficient from a clinical viewpoint in so far as, in order to prevent a recurrence of the colitis caused by Clostridium difficile ..., the patient should have remained in hospital under close medical supervision ...

...

Hence, the doctor in question did not act with the necessary care and diligence, thereby incurring disciplinary liability on account of his negligent conduct in the medical assistance provided ... in D. ward of the CHVNG’s medical department between 25 January and 3 February 1998.

The medical opinions make no criticisms of the assistance provided in the gastroenterology department of Santo António General Hospital in Oporto ...”

48. In the light of this report the Inspector General made an order on 26 July 2006 for the opening of disciplinary proceedings against Dr J.V. The outcome of the proceedings was not specified.

2. Proceedings before the Medical Association (case no. 46/98)

49. On 31 August 1998 the Medical Association acknowledged receipt of the applicant’s letter of 13 August, informing her that steps would be taken in response to it.

50. The case was referred to the Medical Association’s regional disciplinary council for the North region, which, after obtaining the patient’s medical records, sought the opinions of the following specialist panels (Colégios de especialidades) of the Medical Association:

- ear, nose and throat (ENT),

- infectious diseases,

- general surgery, and

- gastroenterology.

51. In a report of 14 July 1999 the gastroenterology panel issued the following conclusions:

“...

A simple X-ray of the abdomen performed the day before the patient’s death did not detect any dilatation or perforation of the colon.

The patient’s death was caused by peritonitis as a result of the perforation of the duodenal ulcer. The difficulties in diagnosing the condition were understandable in view of the patient’s serious clinical condition and the fact that his abdominal pains were explained by the inflammatory disease in the colon.

The role of the corticosteroids in aggravating or reactivating the peptic ulcer ... is not currently considered a risk factor ... However, given that the patient had already experienced one episode of intestinal bleeding, there would have been grounds for weighing up the use of these drugs.

...

The decisions to discharge the patient [from hospital] may have delayed the diagnosis or the commencement of treatment. Nevertheless, after examining the documents submitted to me, I am unable to confirm whether these discharge decisions adversely affected his diagnosis or programme of treatment.

...”

52. The conclusions of the report of 13 December 1999 by the infectious diseases panel read as follows:

“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death.

2. In our view, too long a period elapsed between the diagnosis of the perforation in the duodenal ulcer and surgery.

3. The procedure has been undermined to an incalculable extent by the fact that no autopsy was performed, although an autopsy is mandatory (mandatória) in cases of this type in order to shed light on the chain of events.”

53. In a report of 24 April 2001 the general surgery panel found that there had been no negligence or medical malpractice in the hospitals concerned. The report read as follows:

“1. A perforated duodenal ulcer requires immediate surgery. In the present situation the perforated ulcer ... was difficult, if not impossible, to diagnose given the clinical context in which it occurred. Furthermore, in view of the seriousness of the patient’s clinical condition, the approach to surgery had to be given careful consideration and the patient had to be prepared by means of various measures.

...”

54. In a report dated 1 August 2001 the ENT panel concluded as follows:

“1. Meningitis following microendoscopic surgery for nasal polyps is described as one of the (major) complications of this type of surgery, estimated in the literature to occur in between 0.6% and 1% of cases. These figures will be higher in the event of a repeat operation, as in the present case (surgery was performed in 1993 as stated on page 314 of the file concerning the operation).

2. The post-operative CT scan of the brain carried out on 29 November 1997 does not show any discontinuity in the bones at the base of the skull ... which suggests that no invasive endocranial surgery was carried out.

3. The description of the surgery performed on the patient on 26 November 1997 (page 310 of the file) does not give any indication of clinical malpractice or negligence.

4. No ENT procedures were performed during any of the patient’s subsequent stays in Vila Nova de Gaia Hospital or in Santo António Hospital.”

55. In an order of 28 December 2001 the regional disciplinary council for the North region decided to take no further action on the applicant’s complaint, on the ground that there was no evidence of misconduct or medical negligence. The disciplinary council observed the following:

(i) meningitis was a complication that could arise in between 0.6% and 1% of cases following a nasal polypectomy; the figures were liable to be higher for a repeat operation, as in the case in question;

(ii) the applicant’s husband had received appropriate treatment during his various hospital stays;

(iii) the patient’s bacterial meningitis (Pseudomonas) had been treated properly;

(iv) although the infectious diseases panel had suggested that the presence of a specialist in that discipline might have enabled a diagnosis to be made sooner, this had not been a decisive factor in the development of the clinical situation;

(v) the perforation of the duodenal ulcer had been the cause of the peritonitis. This had been difficult to diagnose in view of the patient’s serious clinical condition, a fact acknowledged by the gastroenterology and general surgery panels;

(vi) although the infectious diseases panel had considered that too long a period had elapsed between the diagnosis of the perforated duodenal ulcer and surgery, the time taken to prepare for the operation had been justified since the patient had been suffering from intestinal disease and had severe anaemia, sepsis and a fluid and electrolyte imbalance, as noted by the general surgery panel.

56. On 29 April 2002 the applicant lodged an appeal against the order with the Medical Association’s National Disciplinary Council. On 18 March 2003 the appeal was declared inadmissible as being out of time.

3. Criminal proceedings

57. On 29 April 2002 the applicant lodged a complaint for negligent homicide with the Oporto criminal investigation and prosecution department.

58. She gave evidence on 7 June 2002.

59. By order of the Criminal Investigation Court of 27 September 2002 the applicant was given leave to intervene in the proceedings as an assistant to the public prosecutor (assistente).

60. On 6 December 2007 the public prosecutor’s office made its submissions, charging Dr J.V. with homicide by gross (grosseira) negligence. In support of their decision the prosecuting authorities referred to the report appended to the IGS order of 25 July 2006. They considered that Dr J.V. should not have discharged the applicant’s husband on 3 February 1998 in so far as the patient’s clinical condition had been problematic and he had been infected with the Clostridium difficile bacterium.

61. The case was referred to the Vila Nova de Gaia District Court. During the trial the court heard evidence from the applicant, the accused, eight doctors who had been involved in treating the applicant’s husband in the CHVNG and in Santo António Hospital, and the five medical experts appointed in the context of the proceedings before the IGS. The court also sought the opinion of the Medical Association’s Disciplinary Council.

62. On 15 January 2009 the District Court discontinued the proceedings, taking the view that the findings made by the IGS in its order of 26 July 2006 could not be taken into consideration as they had not been upheld by the five medical experts who had given evidence during the trial.

As to the facts, the District Court considered the following to be established:

“The patient’s hospitalisation on 18 December 1997 ... was not the result of a lack of medical supervision of his clinical condition ... since it was unconnected to the complications arising out of the meningitis. In fact, it resulted from acute anaemia caused by intestinal bleeding from a duodenal ulcer; ...

The decisions to discharge the patient on 13 and 23 December 1997 were appropriate, given that, in the former case, the problem of bacterial meningitis had been resolved, [the patient] had completed the course of antibiotics, he no longer had any symptoms or fever, had a slightly increased white-blood cell count, a falling neutrophil count and normal sedimentation rate, and was not complaining ... and, in the latter case, that is to say, the patient’s hospitalisation from 18 to 23 December 1997, the patient was not complaining of abdominal pain, diarrhoea or bleeding ... with the result that it was possible to continue treating his ulcer with a dietary regime while monitoring him on an outpatient basis ...

When the patient was admitted to Santo António Hospital, laboratory tests were carried out for Clostridium difficile. The results were negative on two occasions.”

On the subject of the surgery preceding the death of the applicant’s husband, the District Court observed as follows:

“... the patient presented in a very serious clinical state, with septic shock and multiple organ dysfunction. For that reason, he was placed on artificial ventilation and vasoactive drugs and fluids were administered ..., together with hydrocortisone to deal with possible acute adrenal insufficiency (falência supra-renal aguda), and broad-spectrum antibiotics;

... in this medical context the patient’s prospects of survival were very uncertain, in view of the septic shock and multiple organ dysfunction;

... a simple abdominal X-ray and an abdominal and pelvic ultrasound scan were therefore requested, which did not reveal a perforation of the intestine.”

In the District Court’s view, it had not been demonstrated that the care provided to the applicant’s husband during his stay in hospital from 25 January to 3 February 1998 had not been in accordance with good medical practice, or that he should have been kept in hospital for longer.

63. The court therefore concluded that there was no causal link between the treatment administered by Dr J.V. to the applicant’s husband in the CHVNG and his death, which

“... was caused by a perforated viscus that was unconnected to the colonic disease treated by the accused, the Clostridium difficile ...”.

It inferred from this that

“...there was no evidence to show that the treatment administered by the accused for the Clostridium difficile was incomplete, that the patient was discharged prematurely on 3 February 1998 or, in sum, that the accused was responsible for the death of the patient on 8 March 1998.”

64. The applicant did not appeal against that judgment.

4. Proceedings in the Oporto Administrative and Tax Court

65. On 6 March 2003 the applicant brought a civil action in the Oporto Administrative and Tax Court against the CHVNG, Santo António Hospital and the eight doctors who had been involved in treating her husband while he was in hospital, claiming compensation for the damage she had suffered on account of her husband’s death. She alleged, inter alia,

(i) that her husband’s meningitis had been caused by the Pseudomonas cepacia bacterium which, she alleged, had been present in the operating theatre during the nasal polypectomy;

(ii) that the meningitis had been diagnosed too late, allowing the illness to become serious;

(iii) that the administering of excessive doses of medication and the lack of a suitable prophylactic had caused the duodenal ulcer which had led to her husband’s death.

66. In the context of these proceedings the applicant was granted legal aid in the form of exemption from payment of the court fees and the fees of a lawyer of her own choosing.

67. Between 4 and 24 April 2003 the eight doctors contested their standing to be sued (ilegitimidade passiva), relying on Article 2 of Legislative Decree no. 48051 of 21 November 1967.

68. On 16 April 2007 the court gave a preparatory decision (despacho saneador) specifying which facts were considered to be established and which remained to be established. In accordance with Article 2 of Legislative Decree no. 48051 of 21 November 1967 it further held that the doctors among the defendants did not have standing (ilegitimidade passiva) in so far as they had been sued only for negligent conduct. Accordingly, it declared the claim admissible only in respect of the hospitals.

69. On 17 January 2011 the applicant gave evidence.

70. During the three hearings the court heard evidence from the following witnesses:

(i) eleven doctors who had been involved in treating the applicant’s husband during his various stays in the CHVNG and Santo António Hospital;

(ii) the applicant’s husband’s general practitioner;

(iii) two doctors who were friends of the family;

(iv) the inspector who had written the final report on completion of the investigation within the IGS; and

(v) the medical experts in gastroenterology and internal medicine whose reports had formed the basis for the last IGS decision.

71. On 24 May 2011 the court made an order concerning the facts. Taking into account the applicant’s husband’s medical records and the various statements made by the witnesses who had given evidence, the court considered it established, inter alia,

(i) that a polypectomy was a straightforward surgical operation which posed minimal risk and that the patient had been informed accordingly;

(ii) that the operating theatre had been aseptic and sterilised at the time of the polypectomy;

(iii) that the origin of the bacterium linked to the patient’s meningitis had not been proven. The court dismissed the possibility of a hospital-acquired infection, pointing out that in that case the prescribed treatment would have had no effect;

(iv) that the medication prescribed in the CHVNG and Santo António Hospital could cause intestinal problems and hence could give rise to colitis;

(v) that the applicant’s husband had been treated with drugs to protect his stomach in the CHVNG;

(vi) that the gastroduodenal perforation had not been detected until the operation was being performed; and

(vii) that the applicant’s husband had died from septicaemia caused by peritonitis resulting from a perforated viscus.

72. On 23 January 2012 the Oporto Administrative and Tax Court delivered a judgment in which it dismissed the applicant’s claims. On the facts, the judgment stated as follows:

“ The Pseudomonas bacterium was resistant to the various antibiotics that were tried ...

When the patient attended Vila Nova de Gaia Hospital on 18 December 1997 he had completely recovered from his bacterial meningitis.

...

On 25 January 1998 the patient again attended Vila Nova de Gaia Hospital, where he was diagnosed with pseudomembranous colitis caused by Clostridium difficile ... The colitis was successfully treated in that hospital ...;

Throughout his stay in Vila Nova de Gaia Hospital he was given treatment to protect his stomach.

...

When he was admitted (to Santo António Hospital on 17 February 1998) he had chronic diarrhoea ... and was diagnosed with suspected inflammatory bowel disease. Medication was prescribed in keeping with that diagnosis.

...

While in Santo António Hospital he was kept under observation, received daily medication and underwent various tests.

...

On 6 March 1998 ... nothing had made it possible to predict the gastroduodenal perforation ... the tests carried out that day ... did not confirm the existence of any duodenal perforation such that the situation had to be kept under review;

...

It was not until 7 March 1998 that the patient’s acute abdominal syndrome was diagnosed, calling for urgent surgery ... it was only during the operation that the patient was found to be suffering from a duodenal perforation;

...

The perforation had occurred 24 hours before surgery.”

The judgment concluded as follows:

“ ... in view of the facts that have been established, it is not possible to determine at what point the defendants, by their actions or omissions, breached the rules of good medical practice ...

It is considered established that A.R.’s death was caused by sepsis due to peritonitis resulting from the perforation of his duodenal ulcer ...

No doubts persisted regarding the diagnosis of meningitis, the procedure adopted, the sequence of treatment and the resolution of the problem, as all the various after‑effects were duly explained.

Hence there were no differences of opinion regarding the need to prescribe and use antibiotics in the context of A.R.’s meningitis and other conditions, although it was explained that colitis is a bacterial imbalance caused by antibiotics (the very ones which have undesirable effects on intestinal flora).

Nevertheless, it was not possible to determine the agent or identify the cause of the bacterium linked to the meningitis and it could therefore not be established with certainty whether the sinus surgery was the source of the problem or was simply one factor causing the infection. The other factors and circumstances preceding the operation ... thus cease to be relevant.

It is none the less surprising that the death of the claimant’s husband should have occurred ... given that he had been strong and in good health and that the microsurgery on his sinuses was a straightforward operation. However, it has not been demonstrated that the therapy or medication administered to A. at any point was unsuited to his clinical condition. There was therefore no breach of the rules of good medical practice (either by action or omission). Accordingly, one of the cumulative conditions for establishing civil liability, namely an unlawful act, is absent.”

73. The applicant appealed against the judgment to the Supreme Administrative Court. She contested the facts deemed to be established, arguing that only by studying the circumstances before, during and after the operation would it be possible to understand what type of bacterium her husband had contracted. She further reiterated that her husband had contracted a hospital-acquired infection and had not received adequate treatment either in the CHVNG or in Santo António Hospital.

74. On 26 February 2013 the Supreme Administrative Court dismissed the applicant’s claims, upholding the judgment of the Oporto Administrative and Tax Court. It first of all declined to review the facts considered by the court below to have been established, on the grounds that the hearings had not been recorded and that no new documents had been submitted which could cast doubt on the evidence forming the basis for the court’s decision. The Supreme Administrative Court summed up its judgment as follows:

“The court below considered, in sum, that it had not been possible to identify the nature and origin of the bacterium that caused the meningitis and that it had not been demonstrated that the illnesses subsequent to the applicant’s treatment and recovery from that illness ... had been the consequence of incorrect diagnosis or treatment.

For that reason it found that no breach of the rules of good medical practice had been demonstrated that might have caused the patient’s death.

The claimant takes a different view of the matter. However, she bases her arguments mainly on allegations that have not been proven, and in particular the allegation that the meningitis was caused by the Pseudomonas bacterium, allegedly acquired in hospital ... and that the patient did not receive appropriate prophylactic treatment to protect his stomach during his treatment with antibiotics.

Accordingly, these claims can be summed up as allegations of medical negligence which are unsupported by the established facts.”

II. RELEVANT DOMESTIC LAW

75. Article 64 of the Constitution guarantees the right to health and to a national universal health-care service focused on providing free health care while taking account of citizens’ economic and social circumstances.

76. The Health Act, which was approved by virtue of Law no. 48/90 of 24 August 1990, establishes the principle whereby health care is dispensed by State services and establishments and by other public or private, profit‑making or non-profit entities under State supervision. Under Basic Principle XIV of the Act, the users of the health-care system have, among other rights, the right freely to choose their doctor and health-care establishment, the right to receive or refuse the treatment offered, the right to be treated in an appropriate and humane manner, promptly and with respect, the right to be informed of their situation, of possible alternative treatments and of the likely development of their condition, and the right to complain of the manner in which they have been treated and to receive compensation for any damage suffered.

77. The Health Act is regulated by Legislative Decree no. 11/93 of 15 January 1993, which approved the National Health-Care System Regulations (Estatuto do sistema nacional de saúde). Under Article 38, the State has the task of supervising health-care establishments; the Ministry of Health is responsible for setting health-care standards, without prejudice to the functions assigned to the Medical Association and the Pharmacists’ Association.

78. At the relevant time the Inspectorate General for Health (Inspeção‑Geral da Saúde – IGS) was a department within the Ministry of Health with technical and administrative autonomy (Article 1) which was responsible, among other tasks, for supervising the activities and operation of health-care establishments (Article 3 § 1 (a)) and instituting disciplinary proceedings (Article 3 § 2 (b)). The IGS was headed by an Inspector General whose tasks included ordering the opening of investigative proceedings and issuing a decision when they had been completed (Article 5(h)). Under the terms of Legislative Decree no. 275/2007 of 30 June 2007, the Inspectorate General for Health became the Inspectorate General for Health-Care Activities (IGAS). The IGAS has wider-ranging powers which extend to private bodies.

79. The Medical Association was governed at the material time by the Medical Association Statute, adopted by Legislative Decree no. 282/77 of 5 July 1977 as amended by Legislative Decree no. 217/94 of 20 August 1994. It is an independent body which is responsible for maintaining standards among members of the medical profession and ensuring observance of the medical code of ethics. The specialist panels (Colégios de especialidades) are bodies within the Medical Association composed of specialists in different branches of medicine (Article 87 of the Medical Association Statute).

80. The Medical Association has disciplinary powers, although these do not preclude other disciplinary procedures provided for by law (Article 3 of the Disciplinary Regulations for Doctors, approved by Legislative Decree no. 217/94 of 20 August 1994). The regional disciplinary councils are responsible for instituting disciplinary proceedings against doctors in their region (Article 4). The decisions of the regional disciplinary councils are open to appeal before the National Disciplinary Council (Conselho Nacional de Disciplina) within an eight-day period (Articles 44 and 45).

81. Under Article 137 of the Criminal Code, medical negligence is punishable by a fine or a prison sentence of up to three years, or five years in cases of gross (grosseira) negligence.

82. At the material time the State’s non-contractual liability was governed by Legislative Decree no. 48051 of 21 November 1967, Article 2 of which read as follows:

“1. The State and other public-law entities shall be liable in civil law vis-à-vis third parties for any acts infringing those parties’ rights or the legal provisions designed to protect their interests, as the result of unlawful acts committed negligently by State or public agencies or officials in the performance of their duties or as a consequence thereof.

2. Where they have paid compensation under the terms of the preceding paragraph, the State and other public-law entities shall be entitled to claim reimbursement (direito de regresso) from those in charge of the agencies or the officials responsible, if they have not performed their duties with the requisite care and diligence.”

83. The head of the relevant health-care establishment has a duty to inform the competent judicial authority of any suspicious death of a hospital patient, by forwarding the medical records so as to enable an investigation to be carried out to establish the circumstances of death (Article 51 of Legislative Decree no. 11/98 of 24 January 1998 on forensic medical matters). An autopsy is performed in cases of violent or unexplained deaths, except where the clinical data and other elements are sufficiently convincing to preclude any suspicion of a crime; in that case, no autopsy needs to be carried out (Article 54).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION

84. Relying on Article 2 of the Convention, the applicant alleged a breach of her husband’s right to life. Under Articles 6 § 1 and 13 of the Convention she complained about the length of the domestic proceedings she had brought and of the fact that she had not been informed of the exact cause of her husband’s death.

85. The Court considers that the applicant’s complaints should be examined from the standpoint of the substantive and procedural aspects of Article 2 of the Convention, bearing in mind that, since it is master of the characterisation to be given in law to the facts of the case, it is not bound by the characterisation given by an applicant or a government (see Guerra and Others v. Italy, 19 February 1998, § 44, Reports of Judgments and Decisions 1998-I). Article 2, in so far as relevant to the present case, reads as follows:

“1. Everyone’s right to life shall be protected by law. ...”

A. Admissibility

1. Objection that the applicant lacked victim status

86. The Government objected that the applicant lacked victim status for the purposes of Article 34 of the Convention. They submitted that the applicant’s complaints did not constitute an exceptional situation of general interest, nor did they raise serious doubts with regard to the State’s responsibility such that the applicant was entitled to act on her husband’s behalf.

87. The applicant did not comment on this issue.

88. The Court reiterates that, in order to rely on Article 34 of the Convention, an applicant must be able to claim to be a victim of a violation of the Convention. According to the Court’s established case-law, the concept of “victim” must be interpreted autonomously and irrespective of domestic concepts such as those concerning an interest or capacity to act (see Nencheva and Others v. Bulgaria, no. 48609/06, § 88, 18 June 2013). The individual must be able to show that he or she was “directly affected” by the measure complained of (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 96, ECHR 2014, and the case-law cited therein).

89. An exception is made to this principle where the alleged violation or violations of the Convention are closely linked to a death or disappearance in circumstances allegedly engaging the responsibility of the State. In such cases the Court has recognised the standing of the victim’s next-of-kin to submit an application (see Nencheva and Others, cited above, § 89, and Centre for Legal Resources on behalf of Valentin Câmpeanu, cited above, §§ 98-99, with further references).

90. In the present case the applicant is the widow of the person who died in the circumstances described above. The Court also notes that she was a party to all the proceedings conducted at domestic level in an attempt to elucidate the causes of her husband’s death, as the administrative authorities and courts to which she applied did not contest her standing to act on her husband’s behalf. Accordingly, her status as next-of-kin of the deceased is not open to dispute and the Court considers that she may claim to be personally affected by, and therefore a victim of, the alleged violations of the Convention in respect of her husband’s death (see Micallef v. Malta [GC], no. 17056/06, § 49, ECHR 2009). Consequently, she has standing to lodge an application under Article 34 of the Convention in relation to the death in issue.

2. Objection of failure to comply with the six-month time-limit

91. The Government also raised a preliminary objection based on the six-month time-limit. They submitted that the criminal proceedings instituted by the applicant had answered the questions concerning the causes of her husband’s death, in particular by rejecting the applicant’s allegations of medical negligence. Since those proceedings had ended with a judgment of the Vila Nova de Gaia District Court of 15 January 2009 and the application had been lodged on 23 August 2013, the application was out of time.

92. The applicant did not reply to this objection.

93. The Court reiterates that, in order to be compatible with Article 35 of the Convention, an application must be lodged within six months of the date of the final domestic decision, this being understood as the decision which exhausted the remedies available in the domestic legal system. Furthermore, the six-month rule is autonomous and must be construed and applied in each individual case in such a way as to ensure the effective exercise of the right to individual petition (see Worm v. Austria (dec.), no. 22714/93, 27 November 1995). Normally, the six-month period runs from the final decision in the process of exhaustion of domestic remedies (see Edwards v. the United Kingdom (dec.), no. 46477/99, 7 June 2001).

94. The Court also observes that, under the procedural limb of Article 2 of the Convention, States have a positive obligation to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002-I). If the infringement of the right to life or to personal integrity is not caused intentionally, this obligation does not necessarily require the provision of a criminal-law remedy in every case (see Mastromatteo v. Italy [GC], no. 37703/97, §§ 89‑90, ECHR 2002-VIII). In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling any liability of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004-VIII, and Lazzarini and Ghiacci v. Italy (dec.), no. 53749/00, 7 November 2002). What is important is for the system as a whole and the particular proceedings to have satisfied the State’s procedural obligations under Article 2 (see Dodov v. Bulgaria, no. 59548/00, §§ 87-98, 17 January 2008, and Bajić v. Croatia, no. 41108/10, § 93, 13 November 2012).

95. In the present case the Court notes that the applicant brought four sets of proceedings at domestic level seeking explanations as to the circumstances of her husband’s death and to require those responsible to answer for their actions, as follows:

(i) the first two sets of proceedings were opened following a joint letter by the applicant dated 13 August 1998, that is to say, five months after her husband’s death. The proceedings before the Medical Association concluded with a decision of 28 December 2001 by the regional disciplinary council for the North region to take no further action. The proceedings before the IGS ended with an order of 26 July 2006 for the opening of disciplinary proceedings against Dr J.V.;

(ii) the criminal proceedings in the Vila Nova de Gaia District Court were instituted in response to a complaint lodged on 29 April 2002, and concluded with the judgment of 15 January 2009 discontinuing the proceedings, as the applicant did not appeal against the judgment;

(iii) the proceedings for civil liability were brought on 6 March 2003 in the Oporto Administrative and Tax Court, and ended with a Supreme Administrative Court judgment of 26 February 2013 dismissing the applicant’s claims.

96. From a theoretical viewpoint, these proceedings all appear effective in terms of the aim pursued by the applicant, namely to ascertain the cause of her husband’s death and establish any responsibility on the part of the hospital departments and/or the medical personnel, whether in disciplinary, criminal or civil proceedings. In the circumstances of the present case, the Court must examine the proceedings as a whole and ascertain whether they satisfied the procedural obligations arising out of Article 2 of the Convention. In other words, the Court considers that it would be artificial and excessively formalistic to treat the above-mentioned proceedings separately for the purposes of calculating the six-month time‑limit, given the close connection existing between them. Furthermore, it appears that the authorities and courts to which the applicant applied took account of the investigations and expert assessments that had been concluded in the meantime. For instance, the administrative courts heard evidence from the inspector in charge of the IGS investigation, the experts in gastroenterology and internal medicine who had issued opinions in that connection (see paragraph 70 above), and the Medical Association. Consequently, the Court considers that, in the present case, the final domestic decision was the one given most recently, namely the Supreme Administrative Court judgment delivered on 26 February 2013 following the proceedings for civil liability. As the application was lodged on 23 August 2013, that is, six months later, it was not submitted out of time. Accordingly, the Government’s objection should be dismissed.

3. Conclusion

97. The Court notes that this application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Alleged substantive violation of Article 2

(a) The parties’ submissions

(i) The applicant

98. The applicant alleged that her husband had lost his life as a result of a hospital-acquired infection and of various instances of medical negligence which occurred throughout his treatment.

99. She submitted that the Pseudomonas cepacia bacterium that had caused her husband’s meningitis had been contracted in hospital. As to the alleged medical negligence she submitted, in particular

(i) that a serious error of diagnosis had been made when her husband had attended the emergency department of the CHVNG on 29 November 1997 at 1 a.m., after his polypectomy. The doctors on duty had concluded that her husband had psychological problems and had administered medication for that kind of disorder, whereas he had been suffering from infectious meningitis which had not been diagnosed until the following team came on duty at 8.30 a.m. Referring to the opinion of the Medical Association’s infectious diseases panel, she added that the administration of inappropriate medication had allowed a life-threatening infection to develop, which had had to be treated with very high doses of medication with extremely damaging gastrointestinal side-effects. On that point, she also complained of the fact that no prophylactic had been administered which might have alleviated the side-effects of the antibiotic treatment;

(ii) that the decisions to discharge her husband from the CHVNG on 28 and 29 November, 13 and 23 December 1997 and 9 January 1998 had been irresponsible and had not been accompanied by the requisite medical follow-up. The applicant did not challenge the decision taken by Dr J.V. on 3 February 1998 to discharge her husband from the CHVNG, which had been taken in agreement with her and her husband. However, she alleged that her husband had not been monitored properly thereafter by that doctor as had been agreed when her husband was discharged;

(iii) that the perforated duodenal ulcer had been diagnosed well before the surgery performed on 7 March 1998. In the meantime her husband had been left without any medical observation, in appalling suffering.

100. The applicant thus concluded that the doctors had failed in their professional duty as they had not taken prompt and appropriate action to save her husband’s life.

(ii) The Government

101. The Government rejected the applicant’s allegations of a hospital‑acquired infection and medical negligence, stressing that these had no objective basis and had been dismissed in all the proceedings conducted at domestic level. In their view, it was not the Court’s task to call into question the findings reached by the national authorities and courts, whose decisions had been given following fair and proper proceedings that had not been arbitrary. The Government pointed out that ten doctors had given evidence to the courts and that the opinion of the Medical Association’s specialist panels had been sought. They had all concluded that there had been no medical negligence or errors in the treatment of the applicant’s husband.

102. The Government observed that the applicant was calling into question all the decisions taken by the various doctors involved in treating her husband, challenging the diagnoses made, the medication prescribed, the timing of the last surgical operation and even the discharge decisions, with the exception of the decision of 3 February 1998.

103. In their submission, the death of the applicant’s husband had not been caused by any omission on the part of the public authorities, as the various experts had all concluded that there had been no medical malpractice in her husband’s treatment. Referring to the facts as established at domestic level, they observed that it had been proved, among other points

(i) that the patient’s meningitis had not been caused by a hospital‑acquired infection and that it had been treated properly, as the patient had recovered from that illness;

(ii) that the discharge decisions had been justified in view of the development of the patient’s clinical condition;

(iii) that the perforation of the duodenal ulcer had not been observed until the time of the operation, as the tests carried out had not enabled it to be detected earlier.

104. Accordingly, none of the applicant’s allegations had been proven. There was no evidence in the present case of a breach of the rules or failure to comply with clinical protocol or with any procedure required by best practice or medical science. There had therefore been no failings in the treatment chain.

105. The Government further observed that access to health care in Portugal was universal, general and, increasingly, free of charge. In the present case the State had provided all the care, treatment and procedures that were appropriate. Moreover, the technical and scientific procedures used had proved effective, especially since they had taken into account the information gathered from the tests already carried out.

(b) The Court’s assessment

106. The Court reiterates that the first sentence of Article 2 requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports 1998-III, and Vo, cited above, § 88).

107. These principles apply in the public-health sphere too. The positive obligations set forth above thus imply that a regulatory structure be set up by the State requiring that hospitals, be they private or public, take appropriate steps to ensure that patients’ lives are protected. This is based on the need to protect the latter, in so far as possible, from the serious consequences to which medical acts may give rise in this connection (see Codarcea v. Romania, no. 31675/04, § 104, 2 June 2009).

108. The Court cannot rule out the possibility that the authorities’ acts and omissions in the sphere of public health-care policy may in certain circumstances engage their responsibility under the substantive limb of Article 2. However, it has previously held that, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that 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 are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006; Erikson v. Italy (dec.), no. 37900/97, 26 October 1999; and Powell (dec.), cited above).

109. In accordance with Article 19 of the Convention, the Court’s only task is to ensure the observance of the obligations undertaken by the Parties to the Convention. Except in cases of manifest arbitrariness or error, it is not its function to call into question the findings of fact made by the domestic authorities. This is particularly true in relation to scientific expert assessments, which by definition call for specific and detailed knowledge of the subject (see, mutatis mutandis, Erikson, cited above; Počkajevs v. Latvia (dec.), no. 76774/01, 21 October 2004; and De Santis and Olanda v. Italy (dec.), no. 35887/11, § 45, 9 July 2013). Hence, it is not for the Court to question the clinical judgment of health-care professionals (see Glass v. the United Kingdom, no. 61827/00, § 87, ECHR 2004‑II).

110. In view of the circumstances of the present case, in order to determine whether there has been a violation of the substantive aspect of Article 2 of the Convention, the Court must ascertain whether the authorities did what could reasonably be expected of them, and in particular whether they complied, in general terms, with their obligation to protect the physical integrity of the patient in question, especially by providing him with appropriate medical care.

111. Having examined the proceedings conducted at domestic level in relation to the facts in issue, the Court notes that only the investigation carried out by the IGS found that Dr J.V. had acted carelessly, with specific reference to his decision to discharge the applicant’s husband from the CHVNG on 3 February 1998. Although disciplinary proceedings were thus instituted against him, the parties did not provide details of the outcome.

112. With this one exception, the applicant’s arguments were all dismissed and her claims alleging the existence of a hospital-acquired infection and medical negligence were found by the criminal and civil courts, the IGS and the Medical Association to be unsubstantiated. As to the evidence used, the Court notes that the authorities and the courts to which the applicant applied based their decisions on the testimony of the medical staff involved in treating the applicant’s husband and on the expert medical reports which took his medical records into consideration.

113. The Court observes that the second gastroenterology expert who gave evidence in the proceedings before the IGS (see paragraph 46 above), as well as the ENT and infectious diseases panels in the proceedings before the Medical Association, all stated that meningitis was a complication that could arise in exceptional cases following a polypectomy (see paragraphs 52 and 54 above). It further notes that the Medical Association’s infectious diseases panel expressed doubts as to the promptness with which the infectious meningitis had been diagnosed (see paragraph 52 above).

114. In the Court’s view, the fact alone that the applicant’s husband had undergone a surgical operation two days previously entailing the risks referred to above was sufficient to warrant immediate medical intervention in accordance with the medical protocol for post-operative supervision. Yet the medical team does not appear to have taken account of this crucial factor. Without wishing to speculate on the applicant’s husband’s prospects of survival if his meningitis had been diagnosed earlier, the Court considers that the lack of coordination between the ENT department of the CHVNG and the hospital’s emergency department attests to failings in the public hospital service. The applicant’s husband was thus deprived of the possibility of access to appropriate emergency care. This finding is sufficient for the Court to consider that the State failed in its obligation to protect his physical integrity. It therefore finds that there has been a violation of the substantive aspect of Article 2 of the Convention (see, in this connection and mutatis mutandis, Mehmet Şentürk and Bekir Şentürk v. Turkey, no. 13423/09, § 97, ECHR 2013, and Asiye Genç v. Turkey, no. 24109/07, § 82, 27 January 2015).

2. Alleged procedural violation of Article 2

(a) The parties’ submissions

(i) The applicant

115. The applicant complained that the authorities had not established the exact cause of the sudden deterioration in the state of health of her husband, who had hitherto been perfectly fit. In her view, only an overall approach would have been capable of shedding light on the chain of events leading to his death.

116. The applicant criticised the establishment of the facts by the domestic authorities to which she had applied. She argued that the IGS and the Medical Association respectively were required to investigate failings in health-care services and medical malpractice. Neither of those bodies had fulfilled its duties. Moreover, the courts had endorsed their findings.

117. With regard to the proceedings before the Medical Association, the applicant complained that her husband’s medical records had been forwarded with some documents missing, notably the results of laboratory tests identifying the Pseudomonas cepacia bacterium as the cause of his meningitis. She also criticised the dismissal of her appeal against the decision to take no further action on her complaint, observing that the notification had not mentioned the possibility of lodging an appeal or the time-limit for doing so.

118. As to the criminal proceedings, the applicant complained of the fact that the public prosecutor’s submissions had echoed those of the IGS (based on the last investigation report) and had focused exclusively on a single event, namely the decision by Dr J.V. to discharge her husband from hospital on 3 February 1998. In the applicant’s view, an overall investigation should have been carried out covering the entire period from her husband’s polypectomy until his death.

119. Lastly, the applicant complained of the length of the proceedings she had instituted at domestic level. She submitted that she had had recourse to the courts owing to the inaction of the Ministry of Health and the Medical Association.

(ii) The Government

120. The Government contended first and foremost that the operation of hospital services was regulated, that hospitals had governing boards as well as technical and clinical management bodies, and that patients had rights and responsibilities and could make complaints and lodge appeals. Furthermore, doctors were required to observe the rules of ethics in the performance of their duties, and must apply the rules of the medical profession and their specialist knowledge in accordance with best practice and medical protocols. The activity of hospitals was subject to administrative supervision, doctors had disciplinary liability and criminal proceedings were possible. Medical negligence could be the subject of disciplinary, civil and criminal proceedings.

121. The Government submitted that the domestic proceedings had been conducted fairly and independently. The applicant had had an opportunity to present her arguments and evidence and to challenge the defendants’ versions of events and their evidence to the contrary, and to complain of and appeal against the decisions with which she disagreed. In the Government’s view, the decisions adopted following the various sets of administrative and judicial proceedings had been fully reasoned, had stated the cause of death, ruled out the causal links alleged by the applicant and concluded that all possible steps had been taken to arrive at the truth of the situation. With reference to the proceedings before the IGS in particular, the Government noted that these had been reopened twice to allow fresh examinations to be carried out in order to respond as fully as possible to the applicant’s concerns.

122. The Government concluded that the judicial, administrative and disciplinary review mechanisms had been effective as they had succeeded in clarifying all the questions raised, in a rigorous and objective manner, albeit that the unanimous findings had not borne out the applicant’s claims.

123. As to the cause of death the Government observed that, according to the death certificate, the cause had been septic shock resulting from a perforated viscus. As it had not been a violent death an autopsy had not been mandatory. Hence, no autopsy had been performed following the death of the applicant’s husband.

124. With regard to the length of the proceedings, the Government noted that the applicant herself had delayed in bringing judicial proceedings. They argued that the proceedings had been complex, entailing the study of clinical documents and the questioning of a large number of witnesses and experts.

(b) The Court’s assessment

125. As stated in paragraph 94 above, in the sphere of medical negligence the procedural obligation under Article 2 has been interpreted by the Court as imposing an obligation on the State to set up an effective judicial system for establishing both the cause of death of an individual under the care and responsibility of health professionals and any responsibility on the part of the latter. This provision requires that the protective mechanisms afforded by domestic law should not just exist in theory. Above all, they must also operate effectively in practice within a time-span such that the courts can complete their examination of the merits of each individual case; this requires a prompt examination of the case without unnecessary delays (see Calvelli and Ciglio, cited above, § 53, and Šilih v. Slovenia [GC], no. 71463/01, § 195, 9 April 2009). Knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions concerned and medical staff to remedy the potential deficiencies and prevent similar errors. The prompt examination of such cases is therefore important for the safety of users of all health services (see Byrzykowski, cited above, § 117).

126. In cases where the death was caused unintentionally and in which the procedural obligation is applicable, this obligation may come into play upon the institution of proceedings by the deceased’s relatives. The procedural obligation contained in Article 2 is not dependent on whether the State is ultimately found to be responsible for the death (see Šilih, cited above, § 156).

127. The Court observes that it has previously examined the issue of the procedural obligations arising out of Article 2 separately from that of compliance with the substantive obligation and, where appropriate, has found a separate violation of the procedural aspect of Article 2 (see, for instance, Kaya v. Turkey, 19 February 1998, §§ 74-78 and §§ 86-92, Reports 1998‑I; McKerr v. the United Kingdom, no. 28883/95, §§ 116-61, ECHR 2001‑III; Scavuzzo-Hager and Others v. Switzerland, no. 41773/98, §§ 53-69 and §§ 80-86, 7 February 2006; and Ramsahai and Others v. the Netherlands [GC], no. 52391/99, §§ 286-89 and §§ 323-57, ECHR 2007-II).

(i) Existence of an effective and independent judicial system

128. The Court notes, as did the Government, that Law no. 48/90 of 24 August 1990 (the Health Act) sets forth patients’ rights and responsibilities and in particular their right to be informed and to claim compensation for damage suffered as a result of any shortcomings that have affected them (see paragraph 76 above). In addition, in accordance with Legislative Decree no. 11/93 of 15 January 1993 governing the National Health-Care System Regulations, health-care establishments and their medical and non-medical staff are subject to State supervision, while doctors are also subject to disciplinary supervision by the Medical Association (see paragraphs 77‑80 above).

129. As regards the available remedies, the Court notes that in cases of medical negligence Portuguese law provides, in addition to the possibility of criminal proceedings (see paragraph 81 above), for the option of bringing proceedings for civil liability in the administrative courts against public hospitals. The latter may, if applicable, claim reimbursement of the damages from the officials who acted in breach of their professional duty (see paragraph 82 above). The Court also notes that an application may be made to the Ministry of Health and the Medical Association seeking to establish disciplinary liability on the part of members of the health-care profession (see paragraphs 77-80 above).

130. On this basis the Court concludes that the Portuguese legal system offers litigants remedies which, in theory, meet the requirements of the procedural aspect of Article 2.

(ii) Effectiveness of the remedies pursued by the applicant

131. As she observed previously, the applicant made use of four remedies in order to clarify the causes of her husband’s death and establish the responsibility of the medical personnel concerned (see paragraph 95 above). The Court must therefore examine the way in which these proceedings were conducted so as to determine whether the legal system as a whole was capable of establishing the facts, holding those at fault accountable and providing appropriate redress to the victim (see Byrzykowski, cited above, §§ 104-18).

(α) Length of the domestic proceedings

132. The Court notes that before applying to the courts the applicant sought explanations as to the cause of her husband’s death from the Ministry of Health and the Medical Association, in a joint letter dated 13 August 1998.

133. While the Medical Association responded promptly to the applicant’s request by seeking the opinions of five of its specialist panels immediately after receiving the applicant’s husband’s medical records, it took the IGS over two years to order the opening of an investigation, and a further year to appoint an inspector to head the investigation (see paragraphs 31 and 32 above). Furthermore, it did not submit its final report until 28 November 2002, four years after the applicant’s letter (see paragraph 36 above). Owing to the delay on the part of the IGS, the applicant lodged her criminal complaint only on 29 April 2002, and her civil action only on 6 March 2003, four and five years respectively after her husband’s death. As a result of these delays the medical staff who had treated the applicant’s husband did not give evidence until several years after the events, in both the proceedings before the IGS and those in the criminal and civil courts; this may have compromised the reliability of their testimony.

134. Although, as found at paragraph 94 above, the procedural obligation arising out of Article 2 of the Convention does not necessarily require the State to bring a criminal prosecution in cases of medical negligence, the Court cannot but observe the excessive length of the criminal proceedings in the present case, which cannot be adequately explained by the applicant’s conduct or the complexity of the case. The proceedings in question began on 29 April 2002 and did not end until 15 January 2009, when they were discontinued by the Vila Nova de Gaia District Court, six years, eight months and nineteen days after the applicant’s criminal complaint. This length of time can certainly not be regarded as “reasonable” in the circumstances of the case.

135. As regards the proceedings for civil liability, the Court notes that they commenced before the Oporto Administrative and Tax Court on 6 March 2003, at a time when the proceedings before the IGS (which concluded in 2006) and the criminal proceedings were still pending. They concluded on 26 February 2013 with a Supreme Administrative Court judgment. Hence, they lasted for nine years, eleven months and twenty-five days over two levels of jurisdiction. This cannot be said to satisfy the requirement of prompt examination of the case without unnecessary delays. In particular, the Court notes that the Oporto Administrative and Tax Court took more than four years to give a preliminary decision, and a further four years to arrange the hearings.

136. The Court cannot accept that domestic proceedings instituted in order to shed light on accusations of medical negligence should last for so long (see Kudra v. Croatia, no. 13904/07, § 120, 18 December 2012, and Süleyman Ege v. Turkey, no. 45721/09, § 59, 25 June 2013). It reiterates that in circumstances such as those in the present case, a prompt response by the authorities is essential in maintaining public confidence in their adherence to the rule of law (see Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 72, ECHR 2002‑II, and Oyal v. Turkey, no. 4864/05, §§ 74‑76, 23 March 2010), and also to allow the dissemination of information and thereby prevent the repetition of similar errors and contribute to the safety of the users of health services (see Byrzykowski, cited above, § 117). It is thus for the State to organise its judicial system in such a way as to enable its courts to comply with the requirements of the Convention, and in particular those arising out of Article 2 (see, mutatis mutandis, R.M.D. v. Switzerland, 26 September 1997, § 54, Reports 1997‑VI, and Süleyman Ege, cited above, § 59).

137. The Court therefore concludes that the length of the domestic proceedings before the IGS, the Vila Nova de Gaia District Court and the Oporto Administrative and Tax Court did not satisfy the requirement of prompt examination without unnecessary delays.

(β) The decision-making process

138. As regards the conduct of the proceedings brought by the applicant, the Court observes, as it has already done at paragraph 112 above, that the authorities and courts to which the applicant applied examined her husband’s medical records and took evidence from the doctors involved in the chain of events. The IGS and the Medical Association also ordered expert medical reports; the courts did not do so, but based their findings on those of the expert reports prepared in the context of the IGS proceedings.

139. The Court notes that no autopsy was ordered in connection with any of the proceedings, since the cause of the applicant’s husband’s death had not raised any doubts, as pointed out by the Government, referring to the statutory provisions in that regard (see paragraph 83 above). Nor does it appear that the applicant requested an autopsy, although it was open to her to do so; hence, she cannot criticise the State authorities for a situation to which she herself knowingly contributed (see, mutatis mutandis, Pūpēdis v. Latvia (dec.), no. 53631/00, 15 February 2001).

140. In general terms, as pointed out by the Government, the applicant had the opportunity to adduce her arguments and dispute those advanced by the persons who gave evidence at the hearings. In other words, the adversarial principle was observed in all the proceedings in issue.

141. As to the expert assessments carried out at domestic level, the Court notes again that the Medical Association’s infectious diseases panel expressed doubts as to the promptness with which the applicant’s husband’s infectious meningitis was diagnosed. The gastroenterology panel also took the view that the need to administer corticosteroids to the patient should have been weighed up in view of the fact that he had already suffered an episode of intestinal bleeding (see paragraph 51 above). These doubts were not confirmed by the other medical experts and were thus dismissed by the Medical Association’s disciplinary council for the North region in its order of 28 December 2001 (see paragraph 55 above). As the applicant did not lodge her appeal against that order within the time allowed, she was unable to obtain a review of these points.

142. The Court notes that, despite the doubts expressed by these experts, none of the decisions given or the expert reports submitted in the course of the domestic proceedings shed light on, or at least addressed satisfactorily, the possibility of a direct causal link between the various health problems experienced by the applicant’s husband two days after having undergone a polypectomy. In view of the circumstances of the case, however, this issue warranted in-depth examination. Although the applicant’s husband did not die of the infectious meningitis he contracted after his polypectomy, the further complications appear at first sight to be directly linked to that episode, with the result that the applicant was entitled to feel that she had not been informed as to the cause of her husband’s death. In each set of proceedings the events were described in chronological order in isolation from each other. For instance, the judgment of the Oporto Administrative and Tax Court described the chain of events as a succession of illnesses (meningitis, colitis, chronic diarrhoea) which were all successfully treated as they arose. As to the perforated duodenal ulcer, it was depicted as an unexpected occurrence.

143. Furthermore, if meningitis is a possible complication following surgery of this kind, the Court considers, in view of patients’ right to be informed of their situation (see paragraph 76 above), that it should have been ascertained whether the applicant’s husband had been duly informed of the risks he faced so that he could give his informed consent. Although the doctor who carried out the operation stated before the Oporto Administrative and Tax Court that he had informed the patient accordingly (see paragraph 71 above), the pre- and post-operative medical protocol for a polypectomy was not explained in any of the proceedings conducted at domestic level. By virtue of the obligation to put in place a framework to ensure the protection of patients’ lives, however, the Contracting States are bound to adopt the necessary statutory and regulatory measures to ensure that doctors consider the foreseeable consequences of the planned medical procedure on their patients’ physical integrity and to inform patients of these beforehand in such a way that they are able to give informed consent (see, mutatis mutandis, V.C. v. Slovakia, no. 18968/07, §§ 107-17, ECHR 2011 (extracts); N.B. v. Slovakia, no. 29518/10, §§ 76-78, 12 June 2012; Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 122, ECHR 2012 (extracts); and Arskaya v. Ukraine, no. 45076/05, § 89, 5 December 2013). In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, and if those doctors work in a public hospital, the State Party concerned may be directly liable for this lack of information (see, mutatis mutandis, Trocellier v. France (dec.), no. 75725/01, ECHR 2006‑XIV).

144. Having regard to these findings, the Court considers that the domestic authorities did not establish with sufficient clarity the circumstances of the death of the applicant’s husband and any responsibility on the part of the doctors who treated him.

(iii) Conclusion

145. In view of the foregoing observations, the Court considers that the domestic authorities did not deal with the applicant’s case concerning her husband’s death in a manner compatible with the procedural requirements of Article 2 of the Convention. Accordingly, there has been a violation of the procedural aspect of that provision.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

146. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

147. The applicant claimed 174,580 euros (EUR) and EUR 100,000 respectively by way of pecuniary and non-pecuniary damage.

148. The Government contested these claims, which they considered excessive and unsubstantiated.

149. Besides the lack of evidence in support of the claim, the Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim.

150. On the other hand, the Court accepts that the violation of the substantive and procedural aspects of Article 2 caused the applicant non‑pecuniary damage by placing her in a position of distress and frustration. Accordingly, ruling on an equitable basis, it considers that she should be awarded EUR 39,000 in respect of non-pecuniary damage.

151. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT

1. Declares, unanimously, the application admissible;

2. Holds, by five votes to two, that there has been a violation of the substantive aspect of Article 2 of the Convention;

3. Holds, unanimously, that there has been a violation of the procedural aspect of Article 2 of the Convention;

4. Holds, by five votes to two,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 39,000 (thirty-nine thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses, unanimously, the remainder of the applicant’s claim for just satisfaction.

Done in French, and notified in writing on 15 December 2015, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Françoise Elens-PassosAndrás Sajó
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judges Sajó and Tsotsoria is annexed to this judgment.

A.S.
F.E.P.

JOINT DISSENTING OPINION OF JUDGES SAJÓ
AND TSOTSORIA

This sad case is about alleged medical negligence. In paragraph 114 of the judgment the majority came to the conclusion that the State had failed to comply with its substantive duty to protect the applicant’s husband’s “physical integrity” (not necessarily life! which is protected under Article 2) because of the lack of (delay in) a surgical intervention that was required in accordance with the applicable rules of medical practice, stating that “[w]ithout wishing to speculate on the applicant’s husband’s prospects of survival if his meningitis had been diagnosed earlier, the Court considers that the lack of coordination between the ENT department of the CHVNG and the hospital’s emergency department attests to failings in the public hospital service.”

We have to disagree on factual and jurisprudential grounds.

Among the many expert opinions submitted in the four sets of domestic proceedings, which all concluded that there had been no medical negligence, the Court relies on the conclusions of the report of 13 December 1999 of the specialist infectious diseases panel, according to which

“1. In our opinion the diagnosis of meningitis, most likely resulting from the nasal polypectomy, was inexplicably delayed. The fact that there was no one on the medical team trained in this type of diagnosis (for example, a specialist in infectious diseases) may be regarded as the only explanation for such an incident. However, this was not the immediate cause of the patient’s death.”

Firstly, this conclusion was expressed in the context of disciplinary proceedings. For the purposes of the rules of admissibility applied by this Court, those proceedings ended with a decision of the Portuguese National Disciplinary Council of 18 March 2003 (see paragraph 56 of the judgment). In so far as the applicant’s complaint concerns that decision, it is therefore inadmissible, as are all the other complaints concerning the other proceedings, except those before the Oporto Administrative and Tax Court. It is of importance that in the final set of proceedings, which are the only admissible ones, the 1999 report was not part of the file.

Secondly, we do not consider ourselves qualified to deal with medical diagnosis. In particular, in the absence of expert medical opinion to the contrary, we do not perceive a link between an alleged delay in the diagnosis of meningitis that occurred on 29 November 1997 (see paragraph 114 of the judgment) and a death that occurred on 8 March 1998 which was not caused by the meningitis. It is clear that not even the 13 December 1999 forensic opinion implied such a causal link. We cannot understand how an alleged organisational negligence that did not result in death can be construed as the basis of State responsibility for failing to protect life (which is replaced with the term “physical integrity”).

Lastly, and most importantly, the attribution of State responsibility exclusively on the basis of an alleged lack of coordination among the various units of the same hospital radically departs from the principles referred to in the actual judgment itself. The Court correctly refers to the applicable principle as being the following:

“… where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that 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 are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life (see Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006; Erikson v. Italy (dec.), no. 37900/97, 26 October 1999; and Powell (dec.), cited above).”

We should add that in the case-law the French “mauvaise” coordination means negligent (see the English version of Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V, and its precedential progeny including Byrzykowski). Whichever type of coordination (“mauvaise” or negligent) we are confronted with here, the position of the Court has so far been that this cannot, in itself, result in the violation of a positive obligation of the State. There is no “additional” element here. On the contrary, as mentioned above, the allegedly negligent coordination in the present case did not result in the death of the applicant’s spouse. Even assuming that there had been a causal relationship, this is not enough to find a violation in the light of the cases cited above (see Byrzykowski; Erikson; and Powell, all cited above, and Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 48, ECHR 2002‑I).

The Court relies, mutatis mutandis, on Mehmet Şentürk and Bekir Şentürk v. Turkey (no. 13423/09, § 97, ECHR 2013) and Asiye Genç v. Turkey (no. 24109/07, § 82, 27 January 2015). In the former case there was a violation of the law in that any urgent medical treatment was denied on account of the inability to advance the costs. This was a case of denial of medical service. The latter case concerned a systemic failure of the neonatal service in a given geographical area. On the basis of expert medical opinion on the causes of the death, the Court found in Genç (§ 77) that “in the present case neither the seriousness of the condition of the applicant’s son, who was born prematurely and suffered from respiratory distress, nor the need for urgent medical intervention, was in dispute” and, in § 82, that “[a]ccordingly, the applicant’s son should be regarded as having been the victim of failings in the hospital services, in that he was deprived of any access to appropriate emergency care. In other words, the child died not because of any negligence or error of judgment in the care provided …, but simply because he was offered no treatment at all – such a situation being understood to constitute a denial of medical treatment such as to endanger a person’s life (see Mehmet Şentürk and Bekir Şentürk, cited above, §§ 97 and 105)”. The malfunctioning of the hospital authorities in Genç, in that there was no access to adequate emergency care at all, is entirely different from the present case in which access was not denied.

It follows that the Court’s present position represents a radical departure from the above-cited established principles without giving specific reasons. Of course, a new position, even if radically new, cannot be deemed wrong on that ground. We disagree with the new, barely articulated principle that seems to underlie the position of the Court because this position seems to impose Convention obligations concerning the level of medical services to be provided. It discreetly imposes a duty to provide a specific level of health-care service for the purposes of Article 2 § 1.

It would be wrong for this Court to micromanage medical care. For the Court to undertake such a task is not only impossible but simply does not follow from the concept of human rights under Article 2. Our Convention is neither a social rights convention nor a public health service charter. We are not sure that the present case would raise an issue even under the International Covenant on Economic, Social and Cultural Rights.

Our Convention calls for the protection of life by law. Moreover, Article 2 § 1 clearly singles out intentional deprivation of life. It is for this reason that the Court is extremely cautious when it comes to negligent action of State authorities (which is absent in the present case); furthermore, there is a difference between the acts of the medical staff in the public health system and State agents exercising coercive power. The obligations of the State, in the absence of State action aimed at depriving life, are related to the proper operation of the existing legal system, with special emphasis on adequate legal recourse in matters of negligence. The logic of the present case would turn alleged medical negligence cases into substantive violations of Article 2 and would turn this Court into a first- and last-instance medical malpractice court.

There is no Convention obligation imposed on the member States to play Providence and we are not called upon to remedy instances of alleged maladministration of health services. If citizens are of the view that waiting times in urgent situations are unacceptable, they have the means to allocate more resources for health-care necessities through the democratic process. An international court cannot, on the basis of the current wording of the Convention, dictate health policies. All it can do is supervise the responsiveness of the legal system where domestically established standards of life protection have been disregarded (as established by experts). It is a different matter when human rights dictate a health-care policy where the individual is under the control of the coercive monopoly of the State, as is the case of health care of prisoners.

Moreover, courts, and international courts in particular, are not entitled to overrule expert medical opinion; they have to rely on expert medical opinion, while providing all the guarantees stemming from the principle of equality of arms and all measures against arbitrariness. We are not in a better position to know what caused the sad death of the applicant’s husband than the incredible number of experts whose views are unanimous as to the absence of medical negligence.

To sum up, we cannot follow the majority’s finding of a substantive violation because, in our view, the application was lodged too late; it does not address the violation that was found; there is no evidence that the negligence caused the death; and, in the absence of a causal link, the delays in medical intervention due to lack of proper coordination do not raise an Article 2 § 1 issue.

We voted with the majority regarding the procedural violation of Article 2, but only in regard to the last set of proceedings, on account of the lack of celerity, although a considerable part of the delay in that last set of proceedings can be attributed to the completely pointless requests made by the applicant.

It is for this reason that we cannot agree with the amount awarded under the head of just satisfaction (non-pecuniary damage), this being a case of a procedural violation of the duty to protect life. It cannot be compared with the suffering caused by deliberate killings by State agents, though, in our view, this seems to be the ultimate consequence of the logic applied.

 

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