FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 25124/09
by Andrzej TRZEPAŁKO
against Poland
The European Court of Human Rights (Fourth Section), sitting on 13 September 2011 as a Chamber composed of:
Nicolas Bratza, President,
Lech Garlicki,
Ljiljana Mijović,
Päivi Hirvelä,
Ledi Bianku,
Zdravka Kalaydjieva,
Nebojša Vučinić, judges,
and Lawrence Early, Section Registrar,
Having regard to the above application lodged on 8 May 2009,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Andrzej Trzepałko, is a Polish national who was born in 1950 and lives in Pruszków. He was represented before the Court by Ms M. Krasnodębska and Ms M. Gąsiorowska, lawyers practising in Warsaw.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows. On 11 March 2007 the applicant’s thirty-year-old daughter went into labour after a normal pregnancy. At 3.40 a.m. she was admitted to the maternity ward of the Bródnowski Hospital in Warsaw and, following an episiotomy, gave birth to a healthy baby boy at 7.30 a.m.
3. Following the delivery, she repeatedly complained to her parents and the hospital staff about intense pain in the perineum. She was unable to care for the baby. It appears that she behaved unusually as she lost interest in the baby and attempted to leave the hospital.
4. According to the applicant, twenty-four hours following the delivery the level of his daughter’s white blood cells considerably decreased and she suffered from low blood pressure, low temperature, intense pain, incoherent speech and temporary loss of consciousness. The applicant submits that the hospital staff did not react to those symptoms and did not administer any treatment.
5. On 13 March 2007 the applicant’s daughter was transferred to the intensive care unit. On the following day the hospital contacted her parents to inform them that her condition was very serious. On 15 March 2007 she died.
6. On 16 March 2007 the applicant filed a criminal complaint with the Warsaw-Praga Północ District Prosecutor. The prosecutor instituted an investigation into the case of unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code).
7. On 22 March 2007 an autopsy was carried out. It established the presence of streptococcus A bacteria in the body of the applicant’s daughter. No such bacteria had been found at the hospital following the examination of the medical personnel and the hospital premises.
8. Upon the applicant’s request, the District Sanitary Inspectorate carried out a control of the hospital on 16, 19 and 20 March 2007. It established that the bacteria at issue had not been found in any of the patients who had shared the room with the applicant’s daughter, or in any of the hospital staff who assisted at the delivery, nor on the hospital premises. The inspectors identified a number of shortcomings at the hospital, such as overcrowding of the maternity ward, but concluded that none of these shortcomings could have led to the applicant’s daughter being infected with the bacteria.
9. On 28 September 2007 the District Prosecutor ordered that an expert in hospital infections prepare a report for the purposes of the investigation. The report, which took into account the medical notes of the applicant’s daughter, the results of the control carried out by the Sanitary Inspectorate and the records of witnesses’ interviews, was submitted on 8 August 2008.
10. The expert found that the death had almost certainly resulted from sepsis and the related Multiple organ dysfunction syndrome (MODS) caused by a streptococcus A. That bacterium, which had been identified in the body of the applicant’s daughter on 13 March 2007, created very dangerous toxins which led to sepsis carrying a particular risk of fatality. The infection most likely originated from the perineum and the bacteria had already been present there before the delivery. The probability that the bacteria was transmitted from the hospital environment had been lower that 10%. All factors pointed to the probability that the applicant’s daughter had been infected prior to her admission to the hospital. In particular, no other patients had been infected and the bacteria had not been present in the hospital environment. The expert excluded the possibility that the infection had resulted from medical negligence of the hospital staff.
11. As regards the medical treatment, the expert established that the actions of the doctors had been adequate with respect to the condition of the patient and compatible with medical science. They could be reproached for their lack of reaction during the first twenty-four hours; however the sepsis had developed in a particular manner, namely without any accompanying fever. There were no other symptoms suggesting a developing infection and the applicant’s daughter had complained about pain in the perineum, which was typical following a delivery. Furthermore, the applicant’s daughter took – without consulting the doctors – excessive doses of paracetamol which could have disguised the infection and caused paracetamol toxicity. Following the diagnosis of infection, the medical treatment administered was comprehensive and adequate and the hospital staff had acted with the requisite diligence.
12. In the course of the investigation the prosecutor also heard members of the medical personnel, fellow patients and friends who had visited the applicant’s daughter.
13. On 11 September 2008 the Warsaw-Praga Północ District Prosecutor discontinued the investigation, finding that the offence of unintentional homicide had not been committed. Having regard to all the evidence and, in particular, the expert report, the prosecutor found that the death of the applicant’s daughter had not resulted from medical negligence. The hospital staff had administered adequate and appropriate treatment for her condition and had not, in any degree, contributed to her death.
14. On 25 September 2008 the applicant’s lawyer appealed. She pointed out that two important witnesses, namely the head of the obstetrics department and the doctor who had supervised the applicant’s daughter, had not been heard. The prosecutor failed to establish whether other women had been infected with the same bacteria in the hospital despite the fact that the applicant had provided him with details of a woman who had been so infected. The applicant’s lawyer also contested the findings of the expert. In particular, she averred that the response of the medical personnel to the deteriorating condition of the applicant’s daughter within the first forty‑eight hours had been inadequate and limited to administering pain killers. Furthermore, the expert had not addressed the fact that not all of the doctors, midwives and nurses working at the obstetrics department had been tested for the bacteria. The expert had wrongly assessed the evidence and had erred in concluding that there had been no medical error on the part of the hospital staff. Consequently, the prosecutor’s decision that the death of the applicant’s daughter had not resulted from the actions of the medical personnel had been erroneous and needed to be revisited. The applicant filed his own appeal.
15. On 27 November 2008 the Warsaw Praga-Północ District Court upheld the District Prosecutor’s decision of 11 September 2008. It held that the prosecutor had obtained sufficient and relevant evidence and had assessed it correctly. Similarly, there were no grounds to contest the prosecutor’s factual findings or his legal assessment of the case.
16. The court found that the appeals had not put forward any arguments which could have resulted in the quashing of the decision. More specifically, it held that the allegations of the prosecutor’s failure to investigate all the relevant circumstances of the case had been unsubstantiated. The prosecutor’s decision was based on the ample evidence obtained from the hospital staff (doctors and nurses) and the fellow patients, and, in particular, on the results of the autopsy and the expert report. The expert concluded, with the probability nearing on certainty, that the death had resulted from sepsis and the related MODS caused by a streptococcus A bacteria. The infection had not originated from the hospital environment and had not been caused by medical negligence. As regards the treatment administered to the applicant’s daughter both during and following her labour, the expert considered it adequate and appropriate. The court, despite the applicant’s misgivings, found no grounds to contest the reliability of the expert report. Furthermore, it considered that the alleged prosecutor’s failures to obtain additional evidence proposed by the applicant would not in any event change the conclusion of the investigation.
B. Relevant domestic law
17. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of a human being shall be sentenced to a term of imprisonment between three months and five years.
COMPLAINTS
18. The applicant alleged a breach of Article 2 of the Convention. He claimed that the medical treatment of his daughter had been inadequate and that the medical personnel had not reacted promptly to her condition. The investigation had been ineffective since the prosecutor had refused to take all investigative measures requested by the applicant which could have shed light on the circumstances of his daughter’s death. Furthermore, the investigation had not been prompt as the preparation of the expert opinion had taken one year. Lastly, he referred to the fact that the prosecutors had changed three times during the course of the investigation.
19. The applicant complained under Article 3 of the Convention that the lack of reaction of the medical personnel to his daughter’s pain and unusual behaviour had amounted to inhuman treatment.
20. The applicant alleged a breach of Article 8 of the Convention. He claimed that the right to respect for private life entailed the obligation to provide adequate perinatal care in the State hospital. Even assuming that the infection did not result from medical negligence, the medical care of his daughter was inadequate.
THE LAW
A. Alleged breach of Article 2 of the Convention
21. The applicant complained under Article 2 of the Convention that the treatment of his daughter had been inadequate. He further alleged that the investigation into his daughter’s death had been ineffective and lacked promptness.
22. With regard to any possible substantive aspect of the applicant’s complaint under Article 2 of the Convention, the Court observes that the applicant does not in any manner allege or imply that his daughter was intentionally killed by the doctors responsible for her care and treatment at the material time. He avers, on the other hand, that the responsible doctors did not promptly administer treatment adequate to her condition.
23. Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see, among other authorities, L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998‑III; Jasińska v. Poland, no. 28326/05, § 57, 1 June 2010). The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients – which was not contested in the present case – it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient, assuming such to have been established, 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 Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000‑V).
24. Having regard to the above, the Court considers that the applicant’s grievances are more appropriately examined from the angle of the procedural requirement implicit in Article 2 of the Convention.
25. The Court has held on several occasions that the procedural obligation of Article 2 requires the States to set up an effective independent judicial system so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made 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, § 89, ECHR 2004‑VIII; Šilih v. Slovenia [GC], no. 71463/01, § 192, 9 April 2009). The Court reiterates that this procedural obligation is not an obligation of result but of means only (Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, § 71, ECHR 2002‑II).
26. Even if the Convention does not as such guarantee a right to have criminal proceedings instituted against third parties, the Court has said many times that the effective judicial system required by Article 2 may, and under certain circumstances must, include recourse to the criminal law. However, if the infringement of the right to life or to personal integrity is not caused intentionally, the procedural 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 responsibility of the doctors concerned to be established and any appropriate civil redress, such as an order for damages and/or for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (Calvelli and Ciglio, § 51; Vo, § 90; Šilih, § 194, all cited above).
27. A requirement of promptness and reasonable expedition is implicit in this context (see Šilih, § 195, cited above). Furthermore, the State’s obligation under Article 2 of the Convention will not be satisfied if the protection afforded by domestic law exists only in theory: above all, it must also operate effectively in practice (see, among other authorities, Byrzykowski v. Poland, no. 11562/05, § 117, 27 June 2006).
28. The applicant did not allege that the infringement of the right to life of his daughter was caused intentionally but resulted from the negligence of the health professionals. In particular, he argued that the medical treatment of his daughter was inadequate and that the medical personnel failed to react promptly to her worsening condition. Therefore, in the Court’s opinion, the most suitable avenue for seeking to establish whether his daughter’s death was attributable to shortcomings in the medical care she received would be a civil action in negligence against the hospital and/or the doctors. The applicant appears not to have pursued that remedy, which could have shed light on the circumstances of his daughter’s death and the extent of the doctors’ responsibility seen against the civil standard of proof.
29. Even assuming that the criminal proceedings were a relevant remedy in the circumstances of the case, the Court does not find that the authorities failed to carry out an effective investigation into the cause of death in the present case for the following reasons.
30. The applicant filed a criminal complaint on 16 March 2007 and shortly afterwards the prosecutor instituted proceedings into the death of his daughter. In the course of the investigation the prosecutor heard evidence from the hospital staff, the fellow patients of the applicant’s daughter and further relied on the results of the autopsy and the expert report. The expert in hospital infections established with near certainty that the death of the applicant’s daughter had resulted from sepsis and the related MODS caused by a streptococcus A bacteria and that the infection had not originated in the hospital environment. Secondly, with regard to the treatment administered, the expert concluded that it had been appropriate and adequate at all times. By a decision of 11 September 2008 the District Prosecutor discontinued the investigation, considering, in the light of all the evidence and, in particular, the conclusions of the expert report, that the medical staff concerned had no case to answer. The prosecutor’s findings were subsequently fully endorsed by the District Court on 27 November 2008.
31. The Court considers that the investigation succeeded in elucidating all circumstances which were relevant for addressing the issue of the alleged responsibility of the medical personnel for the death of the applicant’s daughter. It does not find any grounds to contest the findings of the investigation; nor was there any lack of diligence on the part of the authorities. The findings at issue were cogent and based on comprehensive body of evidence. Further, the results of the investigation cannot be undermined by the fact that, as alleged by the applicant, three different prosecutors were consecutively in charge of it.
32. The applicant criticised the investigation for the delay in the preparation of the expert report which took more than ten months. However, the Court notes that the case was complex and finds that the delay at issue examined against the background of the overall length of the criminal proceedings, which lasted over one year, eight months and thirteen days, was not excessive. Thus, it cannot be said that the authorities failed to respect the requirement of promptness and reasonable expedition.
33. In conclusion, the Court finds that the procedural obligation to carry out an effective investigation under Article 2 into the death of the applicant’s daughter was complied with in the present case.
It follows that the complaint under Article 2 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. Alleged breach of Articles 3 and 8 of the Convention
34. The applicant alleged a breach of Article 3 of the Convention because of the lack of reaction of the hospital staff to his daughter’s pain and her unusual behaviour. Further, he alleged a breach of Article 8 of the Convention on account of the inadequate perinatal care afforded to his daughter in the public hospital.
35. The Court considers that no separate issue arises in respect of the complaint under Article 3. It observes that both complaints are mostly a repetition of the complaint made under Article 2 that the medical treatment administered in the case was not satisfactory. However, the Court has examined this complaint above in the context of the effectiveness of the investigation and found it inadmissible.
It follows that the complaints under Articles 3 and 8 are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence EarlyNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy