THIRD SECTION
DECISION
Application no. 56556/10
Florin ISTRĂȚOIU
against Romania
The European Court of Human Rights (Third Section), sitting on 27 January 2015 as a Chamber composed of:
Josep Casadevall, President,
Luis López Guerra,
Ján Šikuta,
Dragoljub Popović,
Kristina Pardalos,
Johannes Silvis,
Iulia Antoanella Motoc, judges,
and Stephen Phillips, Section Registrar,
Having regard to the above application lodged on 24 September 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Florin Istrățoiu, is a Romanian national, who was born in 1975 and lives in Tilbury, the United Kingdom. He was represented before the Court by Mr C. J. Barnett, a lawyer practising in London.
2. The Romanian Government (“the Government”) were represented by their Agent, Ms C. Brumar, from the Ministry of Foreign Affairs.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
1. The circumstances of the death of the applicant’s son
4. On 12 May 2005, the applicant’s son, aged five years and six months at that time, underwent a tonsillectomy – an operation to remove his tonsils – performed by Dr O.L.T. in a private clinic. After the surgery the child’s condition was stable and the first medical check-up was scheduled for 21 May 2005.
5. During the medical check-up, which took place on the scheduled date, Dr O.L.T. assured the parents that the post-surgical recovery was going well and recommended that they continue caring for their child in the same way.
6. In the morning of 23 May 2005 the child suffered a haemorrhage, causing blood to flood his mouth and nose. The applicant’s mother-in-law called an ambulance and his wife went outside to wait for it. Before the ambulance arrived, she and L.S., a neighbour she had met on her way out, took a taxi and rushed the child to the emergency unit of the Bacău County Hospital.
7. According to the applicant, at the emergency unit of the Bacău County Hospital his wife and son encountered a member of the medical staff who, without examining his son, advised his wife to take the child to the paediatric unit of the same hospital for medical care.
8. The child did not receive any medical treatment at the emergency unit of the Bacău County Hospital because the applicant’s wife had immediately taken the child to the paediatric unit of the hospital.
9. Upon arrival at the paediatric unit, the doctors tried to resuscitate the child and clear his respiratory channels, but without any success. The child had died.
2. Criminal investigation
10. On 23 May 2005, the Bacău Police Department initiated of its own motion a criminal investigation into the death of the applicant’s son. On the following day, it carried out an investigation on the premises of the Bacău County Hospital (cercetare la fața locului) and at the applicant’s home.
11. On the same date the Bacău Police Department asked the Bacău Forensic Service to produce an autopsy report in respect of the applicant’s son.
12. On the same date the Bacău Forensic Service issued a death certificate which concluded that the applicant’s son had died of acute respiratory failure as a result of the blood that had blocked his airways.
13. On 28 and 29 May as well as 16 and 23 June 2005 the Bacău Police Department heard the applicant and his wife.
14. On 2 June 2005 the applicant lodged a criminal complaint with the Bacău Prosecutor’s Office for aggravated involuntary manslaughter against Dr O.L.T. and the unidentified staff member who had been working at the Bacău County Hospital emergency unit on the morning of 23 May 2005. He alleged that the faulty surgical and post-surgical treatment received by his son from Dr O.L.T., as well as the refusal of the unidentified staff member of the Bacău County Hospital emergency unit to urgently treat his son, had resulted in his death. In addition, he asked the investigating authorities to identify all the medical personnel working at the emergency unit of the Bacău County Hospital on the morning of 23 May 2005 because their identities were unknown to him. Furthermore, he informed the investigating authorities that he reserved his right to join the criminal proceedings as a civil party and his right to request that the private clinic where the surgery had taken place and the Bacău County Hospital be held jointly liable with their staff for their negligence while on duty under the relevant provisions of the criminal procedure law and civil law. Lastly, he asked the domestic authorities to order the Bucharest Forensic Service to carry out a forensic expert report that would answer his questions about the cause and circumstances of his son’s death.
15. On 21 June 2005, the Bacău Forensic Service produced the autopsy report requested by the Bacău Police Department on 24 May 2005. The report, signed by three forensic experts, relied amongst other things on a histological examination of tissue collected from the applicant’s son after his death. It noted the opening of a very small blood vessel in the cavity of the upper left tonsil. It concluded that the child’s death had been violent and had been caused by severe respiratory failure resulting from the aspiration of blood into his airways. The bleeding had originated from a small damaged arterial blood vessel located in the cavity of the left tonsil and had lasted for a few hours. Blood had accumulated in the stomach cavity, which had resulted in vomiting and subsequently in the blocking of the child’s airways. The blood vessel had been damaged by local acute inflammation – also confirmed by the histological examination – which had happened on the eleventh day after the surgery. The report noted that although those circumstances were rare, they occurred in 4% to 8% of cases. It excluded the possibility that the bleeding had been caused by the severing of a larger blood vessel or an artery during surgery. Had that been the case, the bleeding would have happened faster and more abundantly. Lastly, it recommended that the report be submitted for approval by the forensic review board of the Iaşi Forensic Service, which could also assess, among other things, the medical conduct in the case.
16. On 1 July 2005, further to the applicant’s request, the Bacău Police Department provided him with a copy of the autopsy report produced by the Bacău Forensic Service and of the surgery report produced by the private clinic where his son’s surgery had been performed.
17. On an unspecified date, the autopsy report was sent for approval to the review board of the Iaşi Forensic Service and the higher forensic review board of the Bucharest Forensic Service.
18. On 11, 18 and 21 July 2005 the Bacău Police Department heard the medical personnel of the private clinic where the applicant’s son had undergone surgery and who had been involved in his pre- and post-surgical care, as well as Dr O.L.T.
19. On 28 July 2005, the applicant lodged a request with the Bacău Police Department for a new forensic expert report to be produced in his son’s case. He requested that a forensic expert chosen by him and an otolaryngologist be allowed to take part in the process.
20. On 30 July 2005, the Iaşi Forensic Service review board approved the autopsy report of 21 June 2005. The board included an otolaryngologist. It concluded, among other things, that the surgical operation and the post‑surgical examinations had been appropriate and that the applicant’s son had not been treated negligently. The delayed haemorrhage had not been caused by the surgery, but by a secondary inflammation. The last medical examination of the applicant’s son could not have identified a microscopic infection. However, the medical personnel of the Bacău County Hospital emergency unit had to explain their conduct given that their statements had not been attached to the examined file.
21. On 27 October 2005 the higher forensic review board of the Bucharest Forensic Service examined and approved the findings of the autopsy report and of the Iaşi Forensic Service review board. The board, which also included an otolaryngologist, concluded that Dr O.L.T. had not committed any medical errors and that the cause of death established by the autopsy report was correct. The death of the applicant’s son was not a consequence of the surgery. No one could be blamed for his haemorrhage, because it had been caused by a necrosis of the wall of the carotid artery which had subsequently spontaneously broken. The choices made by the medical personnel of the Bacău County Hospital emergency unit had been based on the equipment available in the emergency unit and the seriousness of the condition of the applicant’s son. Although it was clear that the applicant’s son had died by the time he had reached the paediatric unit, there were no medical records to show whether he had still been alive when he had arrived at the emergency unit of the hospital. Given the circumstances and the seriousness of his condition, there was little hope that he could have been saved.
22. On 4 November 2005, the Bacău Prosecutor’s Office authorised a new forensic expert report, deemed necessary by the applicant. However, the report was never produced because on 6 December 2005 the higher forensic review board of the Bucharest Forensic Service communicated its report of 27 October 2005 to the Bacău Police Department.
23. From 28 November 2005 to 16 May 2007 the Bacău Police Department and the prosecutor’s office repeatedly questioned the medical personnel of the Bacău County Hospital emergency unit who had been on duty when the applicant’s son had arrived at the hospital, namely doctors S.C., L.E. and H.S.; the orderly, L.L.; nurse S.M. and head nurse N.L.O. The investigators also questioned R.D.M., the taxi driver who had transported the applicant’s wife and son to the hospital, and L.S., the applicant’s neighbour who had accompanied them.
24. On 21 December 2005, at the request of the Bacău Police Department, the Bacău County Hospital notified the police that their internal inquiry had been unable to identify the individual who had directed the applicant’s wife and her son to a different unit of the hospital, because all those questioned had stated that they did not know who had done so.
25. On 4 January 2006, the applicant submitted before the Bacău Prosecutor’s Office an opinion drafted by a forensic medical expert chosen by him. It criticised the conclusions of the medical forensic documents produced in the case and recommended that a new forensic expert report be produced.
26. On 6 January 2006 the Bacău Medical Council informed the Bacău Police Department that in accordance with the Deontology Code and their professional duties, the medical personnel of the Bacău County Hospital emergency unit had been under an obligation to provide medical assistance in cases similar to that of the applicant’s son. However, only a doctor had had the power to decide on the situation and the medical procedure that needed to be followed in respect of the applicant’s son after a medical examination. The applicant’s son had not been provided with the required medical assistance because the child’s mother had rushed him out of the emergency unit once she had been directed by an unidentified individual, without having entered a doctor’s office. Therefore the child had never been examined by one of the doctors on duty that day. Although the medical personnel who had been on duty in the hospital reception area that day had been questioned, the inquiry carried out by the disciplinary board of the Bacău Medical Council had been unable to identify the person who had redirected the applicant’s wife.
27. On the same date the Bacău Medical Council informed the Bacău Police Department that in their opinion, given the serious condition of the applicant’s son, had he been seen by one of the on-duty doctors, they could have treated him in the emergency unit. Moreover, the child’s condition did not warrant a decision to direct him elsewhere for treatment.
28. On 8 February 2006, the applicant reiterated his request for a new forensic expert report.
29. On 28 April 2006, the higher forensic review board of the Bucharest Forensic Service notified the Bacău Prosecutor’s Office that under the relevant domestic legislation, a new forensic expert report could not be ordered unless there were new medical and factual elements, given that the review board had already issued its opinion on 27 October 2005.
30. By an order of 21 July 2006 the Bacău Prosecutor’s Office instituted criminal proceedings (a ȋnceput urmărirea penală) against the head nurse, N.L.O., for negligence while on duty because he had failed to notify the head doctor and had not taken measures to stabilise the condition of the applicant’s child, who had been brought to the hospital in a critical condition. At the same time, the prosecutor’s office continued to investigate Dr O.L.T. for aggravated involuntary manslaughter and Dr H.S. and nurse S.M. for negligence while on duty.
31. On 23 May 2007 the Bacău Council of Nurses informed the Bacău Police Department that under the relevant domestic legislation it was competent to organise and control the nursing profession. However, the applicant had failed to lodge a formal complaint about the events of 23 May 2005. Although, following press reports, the organisation had carried out a preliminary inquiry into the death of the applicant’s son, it appeared from the available evidence and the inquiry already launched by the organisation into the case that the accusations had been targeted at doctors. The Council of Nurses was not competent to institute disciplinary proceedings against doctors.
32. On 26 March and 21 June 2007, the applicant again reiterated his request for a new forensic expert report. He also requested that Dr O.L.T. and the nurses who had assisted him during the surgery be subjected to a polygraph test.
33. On 25 and 29 May 2007, the authorities investigating the case confronted head nurse N.L.O. with witnesses L.L., L.S. and Dr H.S.
34. On 2 July 2007, the Bacău Prosecutor’s Office dismissed the applicant’s request for a new forensic expert report on the grounds that the autopsy report prepared by the Bacău Forensic Service had been approved by the Iaşi Forensic Service review board and the higher forensic review board of the Bucharest Forensic Service. The latter board had confirmed the accuracy of both the methodology used and the conclusions of the autopsy report. The inconsistencies claimed by the applicant between the autopsy report and the board’s report had been irrelevant in determining the cause of death and whether the doctor who had performed the surgery had committed any medical errors. The prosecutor’s order of 4 November 2005 for a new forensic expert report had not been carried out and was no longer required in the case for the reasons outlined above. Polygraph testing as a means of establishing evidence was not regulated by the Criminal Procedure Code and therefore was not required for the case.
35. By order of 12 March 2008, the Bacău Prosecutor’s Office, relying on Article 10 (d) of the Romanian Criminal Procedure Code, decided to discontinue the criminal proceedings (scoaterea de sub urmărire penală) against head nurse N.L.O. for negligence while on duty and not to institute criminal proceedings (neînceperea urmăririi penale) against Dr O.L.T., for aggravated involuntary manslaughter, and against Dr H.S. and nurse M.S. for negligence while on duty, on the grounds that their actions lacked the elements of an offence. The prosecutor’s office held that the clinical and medical investigation, as well as the tonsillectomy performed by Dr O.L.T., had been adequate and that no omissions or negligence could be established in his conduct towards the victim. In addition, none of the medical personnel of the Bacău County Hospital emergency unit had spoken with the applicant’s wife in order to direct her to the paediatric unit, and the professional duties of head nurse N.L.O. did not include the required power of decision. The applicant challenged the order before the superior prosecutor and argued that a new forensic expert report was necessary to clarify the circumstances of the case.
36. By a final order of 16 June 2008, the superior prosecutor rejected the applicant’s challenge, holding that the available evidence proved that the accused could not be held liable for directly causing the death of the applicant’s son. Dr O.L.T. had observed all the lawful procedures when he had performed the surgery, and the medical community accepted that the severe inflammation which had led to the child’s death had been a rare case. As regards the medical staff of the Bacău County Hospital emergency unit, it could not be established without any doubt whether the child had been alive on his arrival at the hospital. The applicant challenged the order before the domestic courts, arguing that the investigating authorities had failed to produce all the necessary evidence, in particular a new expert report.
3. Court proceedings
37. By a judgment of 27 January 2009, the Bacău District Court dismissed the applicant’s complaint as lodged outside the statutory time‑limit. The applicant appealed on points of law (recurs) against the judgment.
38. On 16 June 2009, the Bacău County Court allowed the applicant’s appeal on points of law, quashed the judgment and remitted the case to the first-instance court.
39. By a judgment of 14 December 2009, the Bacău District Court dismissed the applicant’s challenge on the basis of the available testimonial, documentary and forensic evidence by relying on Article 10 (d) of the Romanian Criminal Procedure Code. It held that none of the defendants who had been on duty at the Bacău County Hospital emergency unit when the applicant’s wife had arrived with her son had had a direct conversation with her or directed her to the paediatric unit. The job description of the head nurse, N.L.O., did not give him the power to make such a decision. In addition, a new forensic expert report was not necessary for the case. The higher forensic review board of the Bucharest Forensic Service had examined and approved all the medical reports produced in respect of the circumstances of the case without identifying any contradictions amongst the available medical papers. The relevant domestic legislation did not allow for a new forensic expert report to be produced after the higher forensic review board had expressed an opinion unless new medical or factual information justified it, which had not been the situation in the present case. The applicant appealed on points of law against the judgment. He argued that a new forensic expert report had been needed in order to clarify the causes and circumstances of his son’s death.
40. By a final judgment of 27 April 2010, the Bacău County Court dismissed the applicant’s appeal on points of law. It held that in spite of the efforts made by the criminal investigators and the court itself, it could not be established beyond any doubt that the person who had directed the applicant’s wife to the paediatric unit was a staff member of the emergency unit of the Bacău County Hospital on duty at the time of the death of the applicant’s son. There had been no evidence in the file that the applicant’s wife had spoken to a doctor and that the doctor had decided to direct her to the paediatric unit. As for the medical papers, which the court considered to be the actual object of the applicant’s appeal on points of law, they stated unequivocally that no medical error had been committed with regard to the treatment administered to the victim. Given the absence of contradictions between the available medical papers and the detailed investigation of the case, a new expert report had not been necessary to clarify the circumstances of the case.
4. Disciplinary proceedings
41. The applicant instituted disciplinary proceedings against Dr O.L.T. before the disciplinary board of the Bacău Medical Council.
42. By a decision of 1 August 2005, the medical council concluded that there were no elements of medical fault.
43. The applicant challenged that decision before the higher disciplinary board of the Romanian Medical Council (“the Higher Board”), arguing that not only had Dr O.L.T. been exonerated, but none of the medical personnel on duty at the Bacău County Hospital emergency unit had been held accountable.
44. By a decision of 10 November 2006, the Higher Board dismissed the applicant’s challenge. It held that, on the basis of the available forensic evidence, otolaryngologists’ opinions and the medical doctrine, the death of the applicant’s son had been caused by a slow haemorrhage located in the cavity of the tonsils. This had been triggered by a local acute inflammatory lesion, which had resulted in the rupture of a small blood vessel, probably after the child had swallowed hard food without chewing it sufficiently. The vascular necrosis which caused the haemorrhage was the result of local inflammation and could not have been diagnosed prior to the time at which it had occurred. It could not have been foreseen by a post-surgical examination of the area operated on. Consequently, the doctor had not breached the rules of good medical conduct.
45. The Higher Board also upheld the outcome of the internal inquiry carried out by the Bacău County Hospital. It noted that the inquiry had been unable to identify the person who had directed the applicant’s wife to the paediatric unit and therefore no administrative sanction could be applied. The applicant did not appeal against the decision of the Higher Board before the domestic courts.
B. Relevant domestic law and practice
1. Relevant domestic law
46. The relevant domestic legal provisions concerning the delivery of expert forensic medical reports and the authorities competent for issuing them, as well as the relevant domestic law and practice concerning the civil liability of doctors and hospitals for medical errors, are described in Eugenia Lazăr v. Romania (no. 32146/05, §§ 41-53, 16 February 2010) and Codarcea v. Romania (no. 31675/04, § 62, 2 June 2009).
47. The relevant provisions on civil liability for tort of the former Romanian Civil Code read as follows:
Article 998
“Any act committed by a person that causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it.”
Article 999
“Everyone shall be liable for damage he has caused not only through his own actions but also through his failure to act or his negligence.”
48. The provisions of the former Romanian Code of Criminal Procedure regarding the instituting of civil proceedings alone or in conjunction with criminal proceedings read as follows:
Article 19
“(1) If a victim has not joined criminal proceedings as a civil party, he or she may bring separate proceedings for damages caused as a result of the offence before the civil courts.
(2) Civil proceedings shall be suspended pending a final judgment of the criminal courts ...”
49. Articles 1000(3) and 1003 of the former Romanian Civil Code provide that those responsible for the supervision and control of a person whom they have appointed to perform a duty are liable for any damage caused by the appointed person in the performance of his or her functions. If several persons are responsible for the damage caused, they are jointly liable for redress.
50. Law no. 95/2006 on health-care reform, in force as from 1 May 2006, introduced the notion of medical negligence and created an obligation for medical personnel to obtain insurance for any civil liability resulting from their work. Its relevant provisions read as follows:
Article 656
“(1) Medical personnel ... who provide medical assistance, within the public and/or private system, in a place specifically designated for this purpose or outside such a place further to an express request from the person/s requiring the medical assistance or from a third party requesting assistance for one or more persons who, for no fault of their own, are unable to request such assistance, shall be insured against medical negligence covering professional civil liability for damage caused through a medical act.
(2) A copy of the insurance policy shall be presented before the conclusion of an employment contract, being a mandatory condition for employment.”
Article 657
“(1) The insurer shall grant compensation for damage for which the insured person is liable, in accordance with the law, to third parties who are ascertained to have been subjected to an act of medical negligence, as well as for the legal fees of the person damaged through the medical act.
(2) Damages shall be awarded irrespective of the place where the medical assistance was provided.
(3) The mandatory insurance ... shall comprise all types of medical treatment provided within the specialty and medical competency of the insured person and within the whole range of medical services offered by the relevant units.”
Article 658
“(1) Damages shall be awarded for the amounts the insured person is obliged to pay as indemnification and legal fees to the person/s damaged through the provision of inadequate medical assistance, which may have triggered bodily injury or death.
(2) In the event of death, damages shall be awarded to the patient’s legal successors who have requested them.
(3) Damages shall be awarded also in the event that medical assistance was not granted even though the condition of the person/s who requested it or for whom medical assistance was requested required such intervention.
(4) Damages shall include potential expenses incurred by a lawsuit in which the insured person is ordered to pay them; the maximum liability for legal fees shall be set out in the insurance policy.”
Article 677
“Acts of medical negligence within the medical activities of prevention, diagnostic and treatment shall be time-barred three years from the occurrence of the damage, except for acts that constitute criminal offences”.
51. The relevant provisions of Decree no. 167/1958 on the statute of limitation in force at the relevant time read as follows:
Article 1
“The right to lodge an action with a pecuniary scope shall be time-barred, if it was not used within the prescribed period.”
Article 3
“The term of the statute of limitation is three years.”
2. Relevant domestic practice
52. The Government submitted several final court judgments concerning proceedings instituted by victims or doctors against the disciplinary decisions of medical councils in respect of cases of medical negligence. Two final judgments rendered by the Ploieşti Court of Appeal and the Bucharest Court of Appeal on 7 February 2012 and 11 April 2013, respectively, dismissed the appeals brought by the victims against the decisions of the medical councils not to pursue disciplinary proceedings against the doctors. Nine final judgments delivered by the Piteşti Court of Appeal and the Bacău Court of Appeal from 23 February 2007 to 21 March 2013 dismissed the doctors’ appeals against the decisions of the medical councils whereby sanctions were applied to them.
53. The Government further submitted one final judgment delivered on 28 May 2013 by the Buzău County Court allowing the victim’s general tort‑law action for joint pecuniary and non-pecuniary damage against the hospital and the doctor who had operated on the victim in 2005 by also relying on Law 95/2006.
COMPLAINT
54. The applicant complained under Articles 2 and 6 of the Convention that the death of his son had been the result of negligence on the part of Dr O.L.T. and the Bacău County Hospital medical staff, who had failed to act speedily in order to save his life. In addition, he argued that the criminal investigation into the death of his son had been ineffective and had lacked promptness, and that no liability on the part of those responsible had been established.
THE LAW
55. The applicant complained about the circumstances surrounding his son’s death in hospital and the investigations into his death. He relied on Articles 2 and 6 of the Convention.
56. The Court considers that the applicant’s allegations should be examined solely under Article 2 of the Convention, which, in so far as relevant, reads:
“Everyone’s right to life shall be protected by law. ...”
A. The parties’ submissions
57. The Government raised a preliminary objection of non-exhaustion of domestic remedies. They argued that the grounds of the appeal on points of law lodged by the applicant against the judgment delivered by the Bacău District Court on 14 December 2009 had referred only to Dr O.L.T. and had not mentioned head nurse N.L.O, Dr H.S. or nurse S.M. In addition, the applicant’s appeal on points of law had focused only on the accuracy of the surgical operation and the alleged inconsistencies between the available forensic medical reports. Consequently, under the relevant criminal procedure rules, the domestic courts were bound to examine the appeal on points of law only in respect of the person to whom it referred. Thus, the last-instance court did not have the opportunity to examine whether head nurse N.L.O. had fulfilled his professional duties and whether he could have been held responsible for the death of the applicant’s son.
58. Furthermore, having regard to the finding of the prosecutor’s office in its order of 12 March 2008 that head nurse N.L.O. did not have, according to his job description, the power to make the relevant decision in respect of the hospitalisation of the applicant’s son, the applicant could have requested the reopening of the internal inquiry carried out by the Bacău County Hospital and of the disciplinary inquiry initiated by the Bacău Council of Nurses. Subsequently, he could have brought a general tort-law action against the aforementioned person.
59. The Government also submitted that the applicant had failed to lodge a general tort-law action under Articles 998 and 999 of the former Romanian Civil Code against the doctor who had operated on his son as well as against any of the other persons he had considered responsible for the death of his son. The remedy in question would have been accessible to the applicant and, according to the Court’s case-law, sufficiently effective given the circumstances of the case. They also contended that according to the relevant domestic legal doctrine, the criminal law considered the fault (culpa) as an offence only where it was particularly severe. However, tort liability could be engaged even for the slightest negligence. Consequently, the findings of the domestic authorities excluded only the accused’s criminal liability and not their tort liability.
60. The Government, referring to the relevant domestic practice submitted before the Court, contended that the domestic courts had allowed general tort-law actions and had awarded damages even when the disciplinary proceedings had been terminated. They also argued that the scope of application of tort liability was even wider than that of disciplinary liability, given that the slightest negligence could give rise to a duty to remedy the damage caused.
61. In addition, the Government contended that the applicant had failed to challenge the higher board’s decision of 10 November 2006 before the domestic courts, even though the said remedy was also accessible and effective.
62. The Government also submitted that the domestic authorities had set up an adequate legal framework for protecting patients’ lives. The activity of the medical emergency services was regulated and the duties of each staff member of the emergency unit were set out in their job description. Consequently, the duties concerning the hospitalisation and transfer of patients were clearly regulated and had been assigned by the Bacău County Hospital. In addition, doctors’ activity was strictly regulated and the domestic legislation provided disciplinary sanctions in the event that doctors breached their professional obligations. Therefore, the legal and administrative framework set up by the domestic authorities was capable of leading to the establishment of the cause of death of the applicant’s son and to the punishment of those potentially responsible for it.
63. The Government further contended that the domestic authorities had reacted promptly and had opened a criminal investigation into the circumstances of the death of the applicant’s son of their own motion. In addition, they had taken all the necessary steps to clarify the circumstances of the victim’s death and to identify those responsible. The applicant had been continuously involved in the proceedings, had been permanently informed about the status of the criminal investigation, and had had access to the available evidence.
64. The Government also submitted that the domestic authorities had refused the applicant’s request for a new forensic expert report because the four available reports had reached the same conclusion, namely that no medical errors had been committed, and had lacked any contradictions. The alleged inconsistencies relied on by the applicant had no relevance in determining Dr O.L.T.’s criminal liability. Moreover, the domestic courts had dismissed the applicant’s challenge against the prosecutor’s order to discontinue, or not to initiate, criminal proceedings against the alleged culprits after examining in detail all the available evidence.
65. The Government stated that the criminal investigation had been carried out by independent investigators who had no connection with the persons involved in the events. Also, the length of the investigation had not been excessive, given the complexity of the case, the absence of any long periods of inactivity, the fact that several forensic expert reports had been produced in respect of the circumstances of the case, and the number of witnesses heard and confronted with one another.
66. The applicant contended that he had not been informed about the witness confrontations carried out by the Bacău Prosecutor’s Office.
67. In addition, he submitted that he had exhausted the available domestic remedies by actively pursuing criminal and disciplinary proceedings. Also, he had repeatedly requested a new forensic expert report in order to clarify the circumstances of his son’s death.
68. The applicant further submitted that although civil proceedings had technically been possible, they would have been unlikely to succeed. The domestic legislation did not allow for a new forensic expert report once the higher review board of the Bucharest Forensic Service had expressed an opinion on the matter and therefore the gathering of new evidence had been prevented. Also, the excessive delays in the criminal investigation had had a highly prejudicial impact on the prospects of any further civil claims seeking to challenge the conclusions reached by the forensic expert. Furthermore, the head nurse who had directed the applicant’s wife to the paediatric unit of the hospital had died in 2007.
69. The applicant also argued that the legal and administrative framework in place had not been sufficient to allow for the cause of his son’s death to be established and to punish any breach of the right to life, given that he had been unable to obtain a new forensic expert report that could have fully clarified the circumstances of his son’s death. Moreover, the head nurse’s responsibility in directing the applicant’s wife to the paediatric unit had been clearly established by the available evidence.
70. The applicant contested the Government’s assertion that the four available forensic reports had corroborated each other. In addition, the report produced on behalf of the applicant by a forensic expert chosen by him had accurately highlighted the unclarified areas.
71. Consequently, the inconsistencies in the investigation and its lack of clarity as to the circumstances of his son’s death and the responsibility of the health-care professionals concerned required additional efforts.
B. The Court’s assessment
72. The Court notes that the Government raised a preliminary objection of non-exhaustion of domestic remedies. However, it considers that there is no need to examine it separately, in so far as the application is in any case inadmissible for the reasons explained below.
73. The Court observes that the applicant did not claim that his son had been intentionally killed by Dr O.L.T. or by the medical personnel of the Bacău County Hospital emergency unit. However, he claimed that the aforementioned individuals had been negligent and had failed to fulfil their professional duties by taking the appropriate measures to treat his son.
74. The Court cannot exclude that the acts and omissions of the authorities in the field of health-care policy may in certain circumstances engage their responsibility under the substantive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health-care 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-care professional or negligent co-ordination among health-care 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 Stihi-Boos v. Romania (dec.), no. 7823/06, § 54, 11 October 2011).
75. In the instant case, the Court notes that at no stage was it established that the coordination of the emergency medical services of the Bacău County Hospital had been dysfunctional. In addition, the applicant did not contest the Government’s submissions that the activity of the medical emergency services had been regulated, that each staff member of the emergency unit had his or her duties set out in the relevant job description, that the duties concerning the hospitalisation and transfer of patients had been clearly regulated and had been assigned by the Bacău County Hospital, or that a breach of those regulations could have resulted in a punishment for those concerned. Furthermore, the forensic expert reports produced in respect of the case had concluded that the pre- and post-surgical treatment received by the applicant’s son from Dr O.L.T., including examinations, had been appropriate and that he had not been treated negligently. In those circumstances, the State could not be held responsible under the substantive head of Article 2 of the Convention.
76. The Court also recalls that the positive obligations enshrined in Article 2 of the Convention, under its procedural head, require an effective independent judicial system to be set up by the authorities so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible be held accountable (see, among other authorities, Calvelli and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR 2002‑I; Vo v. France [GC], no. 53924/00, § 90, ECHR 2004‑VIII; Eugenia Lazăr, cited above, § 66-71; and G.N. and Others v. Italy, no. 43134/05, §§ 69, 80 and 81, 1 December 2009). However, if the violation of the right to life or personal integrity is not perpetrated intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. 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 on the part of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and the publication of the decision, to be obtained. The imposition of disciplinary measures may also be envisaged (see Calvelli and Ciglio, cited above, § 51).
77. In this connection, the Court observes that the Bacău Police Department immediately and of its own motion opened a criminal investigation into the death of the applicant’s son and ordered an autopsy report to clarify the cause and circumstances of his death. In addition, the investigative authorities identified all the medical personnel of the Bacău County Hospital emergency unit who had been on duty on the morning of the child’s death. They heard Dr O.L.T., the medical personnel of the emergency unit, the nurses of the private clinic where the applicant’s son had undergone the tonsillectomy and other individuals familiar with the events that had occurred on that date, namely R.D.M. and L.S. The authorities also heard the applicant and his wife, and provided the applicant with copies of the forensic reports and the orders of the prosecutor’s office to discontinue or not initiate criminal proceedings against the alleged perpetrators. During the judicial stage of the proceedings it appears that the applicant had access to the file and was able to argue his case by making oral or written submissions. In addition, given the number of forensic expert reports produced in the case and the lack of lengthy periods of inactivity by the authorities, the length of proceedings of four years and eleven months does not appear to raise in itself a problem under Article 2 of the Convention (see Stihi-Boss, cited above, § 57, and Desjardins and Others v. France (dec.), no. 50533/07, 15 June 2010).
78. The Court observes that the applicant complained that his repeated requests to have a new forensic expert report produced to clarify the circumstances of the case had been dismissed after the higher forensic review board of the Bucharest Forensic Service had expressed its opinion on the matter. The Court notes, however, that in the present case, unlike in the case of Eugenia Lazăr v. Romania (no. 32146/05, §§ 52‑54, 16 February 2010), the medical forensic reports prepared were consistent in respect of the medical causes of the death of the applicant’s son and the appropriateness of the medical treatment received. Moreover, the domestic authorities, including the courts, examined and dismissed the applicant’s repeated requests for a new forensic expert report on the grounds that it was not necessary for the case. Therefore, the domestic courts, which were competent to decide on the pertinence of the evidence that one party may want to be produced, considered that they had sufficient elements to establish the medical circumstances of the death of the applicant’s son. The Court also finds it relevant that in dismissing the applicant’s action, the domestic authorities took into account the opinion drafted by the forensic medical expert chosen by him and found that the inconsistencies claimed by the applicant between the autopsy report and the review board’s report had been irrelevant in determining the cause of death and whether the doctor who had performed the surgery had committed a medical error.
79. The Court further notes that the domestic courts upheld the order of the prosecutor’s office of 16 June 2008 by dismissing the applicant’s challenge. The Court considers that the courts dismissed the applicant’s action not only because there were no procedural flaws on the part of the investigative authorities, but because they considered on the basis of the available evidence, including the forensic expert reports, that the alleged perpetrators’ actions lacked the elements of an offence.
80. The Court reiterates that Article 2 does not guarantee the right to obtain a criminal conviction against a third party. Therefore, in the absence of any apparent arbitrariness in the authorities’ assessment of the facts surrounding the death of the applicant’s son, the Court considers that the unfavourable outcome of the criminal proceedings for the applicant does not suffice to find the respondent State liable under its positive obligations arising from Article 2 of the Convention (see Sevim Güngör v. Turkey (dec.), no. 75173/01, 14 April 2009).
81. The Court notes that the applicant could have also lodged a civil action against Dr O.L.T., the medical personnel of the emergency unit of the Bacău County Hospital and the hospital itself on the basis of tort liability in order to complain of the dysfunctionality of the public hospital where his son had been taken for treatment, and that he reserved the right to do so. The Court would stress that the purpose of a tort-law action is not solely to seek damages, but also to ascertain fault (see Rădulescu v. Romania (dec.), no. 29158/05, § 49, 7 May 2013). In the present case, the prosecutor’s decision not to institute criminal proceedings was based on Article 10 (d) of the former Romanian Criminal Procedure Code, which excluded only the criminal liability of those investigated which did not impede the ascertaining of a potential civil fault or of a different nature. Given that the value of evidence in civil proceedings is not predetermined, the civil courts would have been free to examine the facts of the case in the light of the evidence produced before them. Moreover, the Court considers that the civil courts could not have opposed the conclusions of the criminal proceedings concerning the inexistence of criminal liability to a civil action (see Stihi‑Boos, cited above, § 63).
82. The Court cannot help but notice the evolution of the domestic laws in the health-care field, whereby the responsibility of health-care professionals is attached to the risk relating to the exercise of that profession (see paragraph 49 above), thus constituting an objective basis for a more efficient legal remedy aimed at compensating the damage caused to a patients’ life or health. The Court also notes the final judgment submitted by the Government whereby damages were awarded on the basis of Law no. 95/2006 further to civil proceedings instituted by the victim against a doctor and a hospital jointly (see paragraph 53 above).
83. That said, it is true that although the domestic case-law on the matter is developing, the domestic courts have not consistently established the liability of hospitals in cases of medical negligence (see Codarcea, cited above, §§ 71 and 108; and Stihi-Boos, cited above, § 64). However, the Court reiterates that the existence of mere doubts as to the prospects of success of a particular remedy which is not obviously futile is not a valid reason for failing to exhaust the said domestic remedies (see Stihi-Boos, cited above, § 64).
84. The Court also notes that the applicant in the present case failed to challenge before the domestic courts the unfavourable disciplinary decision adopted by the higher forensic review board on 10 November 2006. In the absence of such a challenge, the Court cannot speculate as to the potential consequences of such proceedings on the outcome of the case.
85. In the light of the above, the Court considers that the remedies available to the applicant in the instant case were sufficient for the State to have complied with its procedural obligations under Article 2 of the Convention.
86. It follows that the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 19 February 2015.
Stephen PhillipsJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy