FOURTH SECTION
Application no. 61403/10
Beata GIERAŁT
against Poland
lodged on 12 October 2010
STATEMENT OF FACTS
The applicant, Ms Beata Gierałt, is a Polish national, who was born in 1960 and lives in Warszawa.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant suffered from an urological ailment. As non-surgical treatment proved insufficient, an operation was recommended. On 18 May 2005 she was admitted to a public hospital in Warsaw (Szpital Dzieciątka Jezus w Warszawie), signed a general agreement to the operation and was discharged.
She was operated on 26 May 2000.
The operation did not have the planned result. The applicant sought further treatment. On 27 November 2000, before another operation planned for this date in another hospital in Warsaw, she was informed that the first operation had resulted in sterilisation. She was told that the method used for that operation was unlawful precisely because it entailed sterilisation which under Polish law amounted to a criminal offence.
On 24 April 2001 the applicant brought a civil claim for compensation against the hospital. She claimed PLN 121,000. This amount included PLN 100,000 for non‑pecuniary damage for the unwanted sterilisation and the moral suffering this caused to the applicant.
On 12 May 2008 the Warsaw Regional Court allowed her compensation claim in part. It awarded her compensation in the amount of PLN 30,000 with statutory interest, the total amount being PLN 60,000.
The court found that the method used in the applicant’s operation was at the material time widely used in Poland, even though in western Europe it had by then been replaced by another method, known as TVT. Patients of the defendant hospital were routinely informed that tubal ligation was an element of this technique, but no explanation was provided to them that this entailed sterilisation. Nor had they been asked about their reproductive plans and whether they planned to become pregnant in the future. The court noted that an operation of the kind used in the applicant’s case necessitated a detailed conversation with patients, covering also the issue of possible planned pregnancies, and obtaining patients’ informed consent. The applicant had not signed any document confirming her consent to sterilisation; she had only signed a general consent to “proposed treatment and operation” on a form which did not contain any specific information about the envisaged treatment.
The court was of the view that sterilisation of a woman still of reproductive age amounted to serious damage to her health; it also amounted to an enormous and irreparable harm to her psyche. Sterilisation not only made it impossible for a woman to give birth, but could also ruin her life plans and lead to feelings of diminished worth as a woman or even to losing her sense of life. The choice of method used in the present case was not, as such, inappropriate or contrary to medical knowledge at the material time. The court was of the view that the amount of PLN 30,000 awarded to the applicant was commensurate with the damage she had suffered.
The applicant appealed. She submitted that the amount of just satisfaction awarded to her was too low and did not remedy the serious and irreparable damage which she had suffered.
On 31 March 2009 the Warsaw Court of Appeal dismissed her appeal, considering that the amount of PLN 30,000 was, in the circumstances of the case, appropriate. The court noted in this connection that the applicant had two children. She had given birth three times. One child had died in early childhood. She had had one miscarriage. Hence, another pregnancy was not recommended. In any event, in 2003 she had had another operation with a view to improving her health during which her uterus had been removed.
The applicant’s lawyer submitted a cassation appeal to the Supreme Court. He argued, inter alia, that in the circumstances of the case, concerning one of the most important aspects of the applicant’s personal life and identity, the amount of compensation awarded to her was manifestly too low and could not be regarded as appropriate redress for the wrong suffered by the applicant.
On 21 April 2010 the Supreme Court refused to entertain her cassation appeal against the second-instance judgment. This judgment was served on the applicant’s lawyer on 20 May 2010. He forwarded it to the applicant on the same day.
B. Relevant domestic law
At the relevant time, patients rights were provided for by the Medical Institutions Act 1992 (ustawa o zakładach opieki zdrowotnej). Its section 19 (2) provided that a patient had a right to obtain information about his or her condition. Section 19 (3) provided that a patient had a right to give or to refuse consent to medical treatment and to obtain appropriate information about available methods of therapy.
COMPLAINTS
The applicant complains under Article 8 of the Convention about her sterilisation. The applicant contends that she had not given her free, full and informed consent to her sterilisation because she had never been informed that the method to be used for the first operation necessarily entailed sterilisation. She was never informed of the method chosen, of its consequences and about available alternatives. Nor did she give her consent to the sterilisation. The amount of compensation which she received in the domestic proceedings was not commensurate with the gravity of the injury she had suffered.
She further relied on Article 6 of the Convention. She was of the view that the proceedings were unfair in that the court failed to refer to the evidence pointing to the doctors’ obvious guilt.
QUESTIONs TO THE PARTIES
1. May the applicant still claim to be a victim of a violation of the Convention, within the meaning of Article 34?
2. Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention?
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