Communicated on 20 March 2014
THIRD SECTION
Application no. 9126/13
Clara ROMILA
against Romania
lodged on 26 January 2013
STATEMENT OF FACTS
The applicant, Ms Clara Romila, is a Romanian national, who was born in 1952 and lives in Iaşi. She was a geography teacher.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s surgery and ensuing health issues
On 25 August 2004 the applicant was admitted to Hospital S. in Iaşi where she was scheduled to have a thyroid nodule removed. She was referred to the hospital by an endocrinologist. The applicant met with Dr E.T., the surgeon who was to operate on her, and showed him her medical file, consisting of the ultrasound image and a schema of the nodule made by the endocrinologist.
On 29 August 2004, in the presence of the anaesthetist, the applicant signed a consent form which did not describe the particular risks of the thyroid intervention.
The operation took place on 30 August 2004 and was conducted by Drs E.T. and E.C. As several other nodules were found during the intervention, the doctors decided to remove the thyroid.
The tests run after the surgery showed that the nodules had been benign.
On 6 September 2004 the applicant was released from hospital. The diagnosis was multinodular goiter (enlarged thyroid gland that contains multiple nodules), post-surgery hoarseness and acute sinusitis.
After the intervention the applicant continued to feel weak, became sometimes confuse, was unable to swallow and her voice continued to be hoarse. She returned to the hospital on several occasions, but was sent home without examination.
From 23 to 30 September 2004 she underwent several tests in Hospital P. in Bucharest as out-patient, was given treatment for hypothyroidism and was recommended to have speech therapy.
In the following months, she was hospitalised on several occasions for complications related to the initial surgery:
– 19 – 25 October 2004 in Hospital S. in Iaşi;
– 27 October – 10 November 2004 in Hospital P. in Bucharest for speech therapy; and
– 22 – 24 December 2004 in Hospital B. in Bucharest.
It was established that one of the applicant’s vocal cords had been damaged during the initial surgery. On 4 February 2005 she was admitted to Hospital B. in Bucharest where, on 4 March 2005, she underwent plastic surgery. The nerve was repaired, but the vocal cord could not be saved. Some surgical nylon thread, which had remained from the previous intervention, was also removed from her body. The applicant remained in the hospital until 7 March 2005.
On 4 May 2005 the applicant’s ability to return to work was assessed by the specialised commission for the protection of invalid persons, which functioned within the Iaşi County Council (“the commission”). The conclusion was that the applicant had a type two invalidity (that is: loss of work capacity, but personal autonomy preserved).
On 9 November 2005, following another stay in hospital from 3 to 31 October 2005, the applicant was reassessed by the commission as bearing type three invalidity (partial loss of work capacity). She worked part time until 2011 when she reached retirement age.
From 2008 to 2012 the applicant received care on numerous occasions both as in‑patient and out-patient in various hospitals in Iaşi.
2. Complaint lodged with the College of Doctors
On 20 December 2004 the applicant lodged a complaint with the College of Doctors (Colegiul Medicilor) about the complications from the thyroidectomy.
On 10 May 2005 the Iaşi branch of the College of Doctors decided that no medical error had occurred during the applicant’s treatment.
3. Criminal complaint against the doctors
On 5 July 2005 the applicant lodged a criminal complaint against Drs E.T. and E.C. for causing unintentional harm (vătămare corporală din culpă). She requested compensation for her damaged health.
On 29 September 2005 the prosecutor’s office attached to Iaşi District Court started the criminal prosecution.
On 24 October 2005 the prosecutor sought an expert opinion in the case from “Mina Minovici” National Institute for Forensic Medicine (“the Institute”). On 15 February 2006 the forensic report excluded any medical negligence in the case. The applicant contested the results. She sought a new expert evaluation and lodged a criminal complaint against the experts, accusing them of fault.
On 5 June 2006 the prosecutor ordered a new expert report, which concluded that there had been no medical error in the case and that the loss of a vocal cord pertained to the inherent risks of the intervention. The report was drafted on 28 September 2007 and approved by the Institute’s Superior Commission on 12 December 2007. Upon receiving the report, the prosecutor sought clarifications from the Institute on several points concerning possible deficiencies in the medical care. The supplement to the report was released by the Institute’s Superior Commission on 18 July 2008. The new report excluded any medical negligence during the surgery, but in the absence of relevant data in the medical file, it could not assess the quality of the treatment.
On 2 October 2008 the prosecutor’s office decided to terminate the criminal prosecution, considering that Drs E.T. and C.T. had respected their professional obligations. It also decided not to prosecute the experts as they had committed no criminal offenses.
On 15 December 2008 the applicant objected to the prosecutor’s decision. She also reiterated her claim for compensation from the doctors that operated on her and the hospital, as party responsible for the doctor’s actions. The case was examined by the Iaşi District Court which on 15 May 2009 upheld the prosecutor’s decision and thus concluded that the doctors’ behaviour did not enter the scope of criminal law. It considered that the civil courts had jurisdiction in the matter.
On 25 May 2009 the applicant appealed and on 5 November 2009 the Iaşi County Court quashed the previous decisions. It referred the case back to the prosecutor’s office indicating that the prosecution should be reopened in so far as it concerned Drs E.T. and C.T. and opened in so far as it concerned the experts. The court also ordered a new forensic report to clarify the contradictions in the experts’ opinions.
On 10 August 2010 the prosecutor sought a fresh evaluation from the Institute. The new report was released on 17 February 2011. The prosecutor decided to terminate the criminal prosecution on the basis of this report. His decision of 5 December 2011 was contested by the applicant on 25 January 2012, but upheld by the Brăila District Court on 13 August 2012.
The decision was final and therefore the appeal lodged by the applicant was declared inadmissible by the Brăila County Court on 9 October 2012. The request for revision lodged by the applicant was declared inadmissible by the Brăila District Court on 10 June 2013.
4. Claim for compensation lodged with the civil courts
On 14 February 2013 the applicant lodged a civil claim for compensation with the Iaşi District Court. She sought 30,000 euros (EUR) in respect of pecuniary damage and EUR 50,000 in respect of non-pecuniary damage.
She was required to pay 7,551 Romanian lei (RON) for stamp duty. She sought exemption on the ground that the civil claim was stemming from a criminal procedure. Her request was dismissed by the court on the ground that the criminal prosecution had been closed. She formulated a new request for legal aid explaining that she had no means to pay the tax. The District Court allowed her to pay the tax in several instalments.
On 28 June 2013 the applicant informed the court that she had no means to pay the tax in instalments. The court informed her that she could renounce the claim or otherwise she might be ordered by court to pay the tax. She renounced the claim and on the same day the court discontinued the proceedings.
The applicant did not appeal against this decision.
B. Relevant domestic law
1. On the doctor’s civil liability
The Public Health Act (Law no. 95/2006 on the reform of the public health system; “the PHA”) defines the malpractice as a professional error committed in the exercise of a medical act which causes damage to the patient and which triggers the medical personnel’s civil liability.
The College of Doctors – the body assembling all doctors practicing on the Romanian territory – is responsible for dealing with the disciplinary complaints against its members (Article 406 of the PHA). A disciplinary sanction does not preclude finding of criminal responsibility, or of civil liability (Article 442 of the Public Health Act). The decision not to reprimand a doctor taken by a local branch of the College may be contested by the interested party at the National College of Doctors (Biroul executiv al Consiliului naţional; Article 443 of the PHA). The decision ordering sanctions can be contested by the doctor at the county court (Article 451 of the PHA).
The civil responsibility for the damage caused is personal and proportional with the degree of responsibility (Article 643 of the PHA). The Regulations adopted on 14 March 2007 by the Ministry of Health (“the Regulations”) provided that the liability must be established by a court (Article 3 § 2). Under the same Regulations, the doctor is directly liable for established cases of malpractice. The hospital is liable jointly with the doctor.
The doctors have a legal obligation to insure themselves against accusations of malpractice (Article 656 of the PHA). Under Article 662 of the PHA, damages are paid to the patient if the parties reach an agreement or, in the absence of such an agreement, if the doctor’s liability is established by a court.
Articles 668 and subsequent of the PHA establish, under the authority of the Ministry of Health, a Commission for monitoring and addressing the cases of malpractice (“the Commission” Comisia de monitorizare şi competenţă profesională pentru cazurile de malpraxis). It has jurisdiction to establish the existence of malpractice, based on opinions expressed by its experts in the respective field. Any person who considers himself victim of malpractice may address the Commission. The decisions rendered by it can be appealed in court. The procedure with the Commission does not preclude the patient’s right to address the courts directly.
If the Commission establishes the existence of malpractice, based on its decision, the civil courts may award damages according to the Regulations.
2. On the liability of hospitals
Under Article 168 of the PHA and Article 4 of the Hospital Act (Law no. 270/2003), the hospital has to ensure good conditions for accommodation, hygiene and food for patients as well as for prevention of hospital infections. It is liable for any damage caused to patients.
Under Articles 644 – 648 of the PHA, the hospitals are liable for damage caused to the patients by nosocomial infections, defects of the equipment used, medical act, and non-respect of internal regulations. They are also liable, along with the doctor, for any damage caused by the latter.
3. On the patient’s consent
Under Article 649 of the PHA, the patient must a give a written consent prior to any intervention. The medical personnel have an obligation to give detailed information on the diagnosis, nature and purpose of treatment, its risks and consequences, viable alternatives as well as the prognostic for the patient if the treatment is not administered.
Law no. 46/2003 on patient’s rights expressly states that there is an obligation to inform a patient about any surgical intervention proposed, the risks involved in the intervention, alternative treatment, and the diagnosis and prognosis (Article 6). The Law also regulates the patient’s right to seek a second medical opinion (Article 11).
According to Article 37 of that Law, a breach of a patient’s rights may engage disciplinary or criminal action, depending on the applicable law.
COMPLAINTS
1. The applicant complains under Article 6 of the Convention about the length of the criminal proceedings. Under the same article she complains that she was refused access to a court in so far as her civil claim was declared inadmissible by the criminal courts.
2. Under Article 8 of the Convention she complains about the quality of the medical care received, about the fact that she was operated on without prior and informed consent and about the ineffectiveness of the domestic procedures for engaging the doctors’ responsibility for the professional faults committed.
3. Relying on Article 13 of the Convention she complains that the domestic law offered her no effective remedy to complain about the length of the proceedings or access to a court in so far as her civil claims are concerned.
QUESTIONS TO THE PARTIES
1. Did the respondent State comply with its positive obligations under Article 8 of the Convention in respect of the applicant’s right to physical integrity in the instant case (see Trocellier v. France (dec.), no. 75725/01, § 4, ECHR 2006‑XIV)?
In particular:
(a) did the applicant have access to information enabling her to assess the risks of the intervention?
(b) bearing in mind the criminal complaint with a civil claim attached as well as the separate civil action and disciplinary action engaged by the applicant, did the domestic law provide her with an effective and expeditious remedy enabling the establishment of the possible liability of the practitioner or the medical establishment concerned for the physical injuries alleged and, if necessary, obtaining adequate redress?
The Government are invited to provide relevant domestic case-law concerning:
– the effectiveness of a civil action lodged directly against the doctors or the hospitals;
– the effectiveness of a civil claim attached to the criminal complaint, before the criminal courts, where the prosecutor decides not to start prosecution or to end the prosecution;
– the effectiveness of an action lodged with the civil courts after a decision not to prosecute is rendered;
– the effectiveness of the procedure with the College of Doctors and the Commission for monitoring and addressing the cases of malpractice (Comisia de monitorizare şi competenţă profesională pentru cazurile de malpraxis) for the purpose of Article 8 of the Convention and the manner in which the decisions rendered by these bodies may be used by the applicant to obtain redress in a civil court.
2. Did the applicant have access to a court as required by Article 6 § 1 of the Convention, with regard to the manner in which her request for exemption from stamp duties was assessed (Weissman and Others v. Romania, no. 63945/00, ECHR 2006‑VII (extracts))?
3. Did the applicant have at her disposal an effective domestic remedy for her Convention complaints, as required by Article 13 of the Convention?
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