Information Note on the Court’s case-law 220
July 2018
Sarishvili-Bolkvadze v. Georgia - 58240/08
Judgment 19.7.2018 [Section V]
Article 2
Positive obligations
Inefficiency of regulatory framework to protect patients’ lives and absence of statutory remedy for non-pecuniary damage resulting from death caused by medical negligence: violations
Facts – In 2004 the applicant’s son, admitted to intensive care with traumatic injury, died in a hospital a month later. A panel of experts found that a medical error had been committed during his treatment. The applicant refusing to allow an autopsy and, later, an exhumation resulted in the criminal investigation being terminated in 2008, as the prosecuting authority was unable to establish a causal link between the alleged medical negligence and the death of her son. In the meantime, the civil courts concluded that his death had been caused by medical negligence, that the hospital had been carrying out unlicensed activities in a number of fields and that some of the medical staff did not have authorisation to practice medicine independently. The applicant was awarded about EUR 2,700 in respect of pecuniary damage. Her claim in respect of non-pecuniary damage was dismissed as domestic law did not provide for compensation of non-pecuniary damage resulting from the infringement of the right to life of a relative.
Law – Article 2
(a) Substantive limb – In the context of alleged medical negligence, States’ substantive positive obligations were limited to a duty to put in place an effective regulatory framework compelling hospitals to adopt appropriate measures for the protection of patients’ lives. Only in two categories of very exceptional circumstances the responsibility of the State could be engaged in respect of the acts and omissions of health-care providers (see Lopes de Sousa Fernandes v. Portugal [GC], 56080/13, 19 December 2017, Information Note 213).
As in the instant case no question arose of knowingly putting an individual patient’s life in danger by denying access to life-saving emergency treatment, it did not fall within the first exceptional category. The Court thus had to examine, in accordance with the four cumulative criteria set out in Lopes de Sousa Fernandes, whether the case fell within the second exceptional category, that is, whether a systemic or structural dysfunction in hospital services had resulted in the applicant’s son being deprived of access to life-saving emergency treatment and the authorities had known or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising.
Regarding the first of the four criteria, it had not been established that the actions of the health-care providers had gone beyond a mere error or medical negligence in that they, in breach of their professional obligations, had denied the patient emergency medical treatment despite being fully aware that the person’s life had been at risk if that treatment had not been given. The expert opinions as well as the court findings on the matter spoke of medical negligence and errors rather than the deprivation of emergency care as such. While some of the 29 doctors that had participated in the treatment of the applicant’s son lacked adequate qualifications, the case files demonstrated that the emergency surgery had been performed by a surgeon whose qualifications had never been questioned. According to the majority of experts, the possible delay in performing the surgery had been a result of a mere medical error. Therefore, the first criterion was not met and the case did not fall within the second exceptional category.
With respect to whether the responding State had complied with its regulatory duties, the hospital had been carrying out unlicensed medical activities in several fields – cardiology and clinical transfusion in relation to the applicant’s son, and several doctors involved in his treatment had lacked either the necessary licences or qualifications, in violation of domestic law. While there was a legal framework for supervising compliance with the relevant licensing requirements, the respondent Government had not clarified how its implementation had been ensured in practice, if at all. There had therefore been a violation of the State’s substantive positive obligation to provide an effectively functioning regulatory framework that would ensure compliance with the applicable regulations geared to the protection of the patients’ lives.
Conclusion: violation (unanimously).
(b) Procedural limb
(i) Criminal-law remedy – The decision to close the criminal investigation into the death of the applicant’s son had not been taken hastily or arbitrarily. It was duly reasoned and based, among others, on the findings of the relevant forensic experts that it had been impossible to establish a causal link between the medical negligence and the death without carrying out an autopsy or an exhumation, which the applicant had repeatedly refused to allow. Moreover, the prosecutor had demonstrated special diligence and had written to the competent ministry, stating that a medical error committed in the instant case called for “the implementation of adequate measures to prevent similar violations”. Accordingly, the termination of the criminal proceedings in respect of medical negligence did not fall foul of the procedural requirements of Article 2 of the Convention.
Conclusion: no violation (unanimously).
(ii) Civil law remedy – The civil proceedings against the hospital had been successful in establishing the relevant facts related to the applicant’s complaints. However, the domestic legal system did not afford a deceased victim’s surviving next-of-kin the ability to claim and receive non-pecuniary damages in cases of death resulting from medical negligence. In the face of the applicant’s psychological distress related to the death of her young son, the total and unconditional legislative restriction had unjustifiably deprived the applicant of the opportunity to claim an enforceable award of compensation for non-pecuniary damage.
Conclusion: violation (unanimously).
Article 41: no claim made in respect of damage.
(See also the Factsheet on Health)
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This summary by the Registry does not bind the Court.
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