Communicated on 18 December 2014
FIRST SECTION
Application no. 30376/13
Gordana JURICA
against Croatia
lodged on 11 April 2013
STATEMENT OF FACTS
The applicant, Ms Gordana Jurica, is a Croatian national, who was born in 1953 and lives in Zagreb. She is represented before the Court by Mr D. Ivanić, a lawyer practising in Zagreb.
The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
In the period between 1987 and 1989 the applicant underwent several surgeries in the Zagreb Clinical Hospital Centre “Sestre Milosrdnice” (Klinički bolnički centar Sestre Milosrdnice; hereinafter: the “hospital”), a public health care institution, concerning the problem of her middle ear dysfunction.
In the ensuing period the applicant’s condition deteriorated resulting in her left-side facial paralysis without the possibility of recovery, which gave rise to her early retirement as a disabled person.
On 29 January 1998 the applicant lodged a civil action against the hospital and the relevant insurance company in the Zagreb Municipal Civil Court (Općinski građanski sud u Zagrebu) claiming damages in relation to the alleged medical malpractice.
During the proceedings several expert witnesses from Croatia gave their evidence. The applicant objected to their expertise alleging lack of impartiality and asking that some of the experts from one of the neighbouring European Union member states be appointed as expert witnesses in her case. The trial court refused this request on the grounds that the expert reports had been convincingly and adequately drafted and that there was no reason to commission any other reports.
On 29 January 2010 the Zagreb Municipal Civil Court dismissed the applicant’s civil action on the grounds that the expert reports suggested that her health condition had been a result of complications during the surgeries and not of medical malpractice.
The applicant appealed this judgment before the Zagreb County Court (Županijski sud u Zagrebu) alleging, inter alia, that the medical experts who had drafted the reports were personally interested in the proceedings related to the allegations of malpractice in their internal domain of work and which involved allegations against their colleagues, and that they were financially dependent on the hospital system.
On 14 September 2010 the Zagreb County Court dismissed the applicant’s appeal as ill-founded on the grounds that the medical expert reports were well drafted and that there was nothing to raise any doubt as to the impartiality of the experts.
The applicant then lodged an appeal on points of law with the Supreme Court (Vrhovni sud Republike Hrvatske) reiterating her previous arguments.
On 31 August 2011 the Supreme Court dismissed the applicant’s appeal on points of law as ill-founded endorsing the reasoning of the lower courts.
On 2 June 2012 the applicant lodged a constitutional complaint before the Constitutional Court (Ustavni sud Republike Hrvatske) reiterating her arguments as to the lack of impartiality of the medical expert witnesses. She also submitted the relevant data according to which medical negligence was the eight leading cause of death in the US, and that it in principle took share of 9% in Denmark, 11% in the UK, 7,5% in Canada and 13% in New Zealand, of all medical interventions undertaken in a year, whereas in Croatia this number was zero.
On 26 September 2012 the Constitutional Court declared the applicant’s constitutional complaint inadmissible as manifestly ill-founded.
The decision of the Constitutional Court was served on the applicant on 12 October 2012.
COMPLAINTS
The applicant complains, under Articles 6 and 8 of the Convention, about the lack of an effective domestic procedure concerning her allegations of medical negligence.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing within a reasonable time in the determination of her civil rights, in accordance with Article 6 § 1 of the Convention?
2. Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention? In particular, have the domestic authorities complied with their procedural obligations under Article 8 of the Convention (see Csoma v. Romania, no. 8759/05, §§ 41-43 and 53, 15 January 2013; and, mutatis mutandis, Bajić v. Croatia, no. 41108/10, §§ 103-107, 13 November 2012), with regard to the effectiveness and impartiality of the procedures establishing the circumstances of the alleged medical malpractice (see, mutatis mutandis, Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007; Bajić v. Croatia, cited above, §§ 94-102; and Kudra v. Croatia, no. 13904/07, §§ 104 and 105, 18 December 2012)?
The Government are requested to submit two copies of the relevant documents in the applicant’s case, and other information on the problem of medical malpractice and the position of the expert witnesses on the matter in Croatia.
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