SECOND SECTION
Application no. 54969/09
Mehmet ULUSOY and others
against Turkey
lodged on 6 October 2009
STATEMENT OF FACTS
1. The applicants, Zeynep Ulusoy (“the first applicant”), her husband Sebahattin Ulusoy (“the second applicant”) and their son Mehmet Ulusoy (“the third applicant”) are Turkish nationals who were born in 1979, 1970 and 2001 respectively. They were represented before the Court by Mr E. Kutlubay, a lawyer practising in Malatya.
2. The facts of the case, as submitted by the applicants and appearing from the case file, may be summarised as follows.
3. The first applicant paid visits to the regional healthcare centre in Nevşehir in order to receive prenatal care. Although she was told that no anomaly was observed, some medical records confirm her complaints concerning oedemas and blood pressure.
4. After having moved to her family’s city for the approaching childbirth, on 17 July 2001 she applied to the Obstetrics (Shift) Clinic of the Malatya State Hospital on account of diffuse oedemas and high blood pressure. According to the first applicant, a midwife told that everything was normal and that she could return home. On 20 July 2001 the applicant felt faint and went to the same hospital. Without any examination she was told once again that she could return home. The applicant alleges that no test or radiological examination was carried out, for which she was impliedly referred to the private clinic of the physicians. Although there is an invoice issued by the hospital dated 20 July 2001, whether those tests were indeed carried out and on what exact dates remained in dispute between the parties. In this connection, criminal proceedings were instituted against an officer working at the data processing centre of the hospital for counterfeit.
5. On 30 July 2001, ten days before the anticipated date, the first applicant was admitted to the Malatya State Hospital since she was feeling sick again. After having been examined by a midwife, she was immediately taken for a vaginal birth, since the cervix had started dilating. A doctor was notified that the labour had started. Reportedly, after having seen the applicant, the doctor cried out: “why did she not go to a doctor for her oedemas”.
6. The first applicant was accompanied by a midwife and an assistant in the delivery room. Her waters, described as green and “dirty” by the applicant, were broken by them. However, as the midwife did not find the cervix sufficiently dilated for the delivery, she decided to keep the applicant waiting for a while. The applicant was taken out of the delivery room. With the help of other patients in the waiting hall, the applicant managed to let the midwife know about her strong contractions. She was taken to the delivery room once again. As the labour did not proceed, the midwife and her assistant had to make an incision to enlarge the vaginal opening and to allow the baby to be delivered. The childbirth lasted three and a half hours in total.
7. The baby, the third applicant, turned black and blue and had to be resuscitated. Treatment for sepsis was administered. His condition was reported as asphyxia with “apgar 3”.
8. As the third applicant’s condition deteriorated, the following day, 1 August 2001, he was transferred to the Inonu University School of Medicine. His condition was noted down in the follow-up form as: “preeclampsia (+), under observation for HIE, MAS, sepsis”. According to the applicants, the doctors at the Inonu University told them that immediate intervention was needed in case of preeclampsia; that in order to mitigate the high risks involved, a caesarean section should have been done; that as the labour and delivery had lasted too long, the baby had been deprived of oxygen during birth and had swallowed his meconium[1]. They also added that its permanent effects could only be determined with certainty when the baby reached the age of two.
9. When the third applicant was three months old, he was examined at the Hospital of Erciyes University School of Medicine on 12 November 2001. It was explicitly noted down in the consultation form that he was under medical care for hypoxic-ischemic encephalopathy and had evident atrophy according to an MRI scan.
10. Subsequently, it was determined that the third applicant had “meconium aspiration syndrome” with an apgar score of 3. He was diagnosed with psychomotor retardation.
11. The applicants lodged complaints against the midwives and doctors who had been involved in the prenatal care, labour and delivery.
12. In a letter dated 2 July 2003 the Director of Health informed the first applicant that as following an investigation carried out by the Ministry of Health no disciplinary proceedings had been instituted against the health personnel concerned.
13. The applicants lodged criminal complaints against the doctors and midwife working at the Malatya State Hospital. In a decision dated 8 May 2003 based on a preliminary investigation, the Governorship of Malatya granted permission for prosecution.
14. The suspects filed an objection against this decision. On 4 July 2003 the Malatya Regional Administrative Court set aside the decision of the Governorship and barred the investigation by two votes to one. It referred to the statements of three doctors (two gynaecologists and a paediatrician), taken during the preliminary investigation.
15. The applicants initiated administrative proceedings against the Ministry of Health seeking compensation for gross negligence in delivery as well as in prenatal and postpartum health care.
16. The Malatya Administrative Court requested expert evidence from the Forensic Medicine Institute. On 26 May 2006 the 3rd Committee of the Forensic Medicine Institute issued its opinion. After having noted that the patient file had been lost, it made the following observations based on the opinion of a paediatric neurologist, a report from the neuroradiology department and the third applicant’s examination:
“The report of the paediatric neurologist dated 27 December 2005 reads as follows:
‘...in order to associate microcephaly with a birth injury, an atrophy in the middle cerebral artery should be found through a cranial MRI scan...The atrophy mentioned in the MRI scan report is not evident. Even if there is atrophy, it is not at the level which could explain a microcephaly stemming from a birth trauma... (on the other hand, it should also be considered that) a birth trauma might have played an aggravating role by way of triggering a pre-existing condition. For this reason, whether something went wrong during the birth due to the negligence of a healthcare professional should be determined. At 11.05 on 30 July 2001 the mother was taken to the delivery room for a vaginal birth...at 14.40 (approximately 3.5 hours, which is normal and sufficient for a birth; the labour could not be held to be speedy or prolonged) the mother gave birth with the assistance of the midwife. From this information and the fact that the mother was discharged from the hospital next day, it is understood that there was not any problem concerning the mother and that no medical interference with the childbirth, other than the one described above, was needed...
That the baby was underweight when born might suggest that the problems might have begun at the prenatal stage.
The baby was born with inhaled meconium[2]. He was resuscitated and put in an incubator. Following the blood tests the treatment started. As his condition got worse he was referred to the Inonu University School of Medicine. In view of the foregoing, it is understood that there was no negligence.
In conclusion, M. Ulusoy was born underweight ten days before the anticipated date with meconium aspiration 3 apgar...the microcephaly and autism of the child cannot be directly linked to a birth injury...’
The report of the department of neuroradiology reads as follows:
‘...The findings set out above could be identified as ischemic encephalopathy of the child with an apgar score of 3.’
At the meeting held on 26 May 2006 with the participation of the rapporteur of our Committee, the professor of gynecology and obstetrics, we unanimously conclude that:
1) By reference to his age the child was 100 per cent disabled;
2) Although there is not any information concerning the birth history, any medical record such as an NST (foetal non-stress test[3]), considering that the baby developed normally during the first five months, that he did not have most of the clinical symptoms of cerebral hypoxia during the birthing process, that ischemic lesions detected in the radiologic examination might also be linked with the neonatal sepsis, it is held that there is no sufficient medical evidence to establish a causal link between the childbirth and the child’s current condition;
3) The prenatal care was carried out in accordance with medical standards.”
17. The applicants raised an objection against the expert report and requested fresh expert evidence. They specifically called into question how the Forensic Medicine Institute could have reached such a conclusion although the patient file and medical records had gone missing and no record had been kept as regards the birth history.
18. Relying on the expert opinion, the Malatya Administrative Court rejected the applicants’ case on 15 September 2006. It held that no gross fault could be attributed to the administration in the treatment before and after the delivery.
19. The applicants appealed against the judgment on the grounds that the first applicant’s complaints raised as early as the sixth month of her pregnancy, such as high blood pressure or diffuse oedemas, had been ignored; that no test or examination had been carried out in relation to her or her baby during pregnancy; that she had been forced to a vaginal birth without the assistance of a doctor despite her preeclampsia and other manifest complications; that the health personnel had done everything to cover up their failures and irresponsibility but in the end they had had to refer the baby to another university as his condition had deteriorated; that the administration had not submitted the medical records and had falsified the documents that it had submitted in contravention of the Regulation on Patient’s Rights; and that all these had been ignored by the Forensic Medicine Institute and the first-instance court.
20. The Supreme Administrative Court upheld the judgment on 16 February 2009. The final decision was served on the applicants on 13 April 2009.
COMPLAINTS
Relying on Articles 1, 3, 6, 17 the applicants complain that the third applicant’s disability stemmed from the gross fault of the administration both in prenatal care and in the labour and delivery and that the health personnel concerned were not brought to justice. They call into question the accuracy and adequacy of the expert evidence. In this connection, they point out that it was affirmed by the Forensic Medicine Institute that the patient file had gone missing and that there had not been any medical record concerning the birth history. They also point out that the medical records kept during the postnatal care and the third applicant’s treatment was ignored by the Forensic Medicine Institute.
They further allege that in the context of domestic proceedings the Malatya State Hospital submitted unrelated, if not fabricated, documents and destroyed the medical records which would have been decisive for the determination of their case.
QUESTIONS
1. Has there been a violation of the applicants’ right to respect for their private and family lives, contrary to Article 8 of the Convention?
a) Was the prenatal care of the first applicant in accordance with the accepted medical standards? Which tests or examinations were carried out to monitor the first applicant’s pregnancy?
b) Why did the Malatya State Hospital not examine the first applicant’s condition although she went there for her complaints on 17 and/or 20 July 2001 before the birth? If something was done then, what was done?
c) Can the Government provide any explanation as to why the first applicant’s file at the Malatya State Hospital went missing? Is there any provision in the domestic laws, regulations and/or ethical codes in respect of medical records?
d) Could it be considered that the data in respect of the disputed birth history was registered properly?
e) Is the requirement that the negligence of the administration should be “gross” in order to award compensation for medical negligence compatible with the obligation of the State Party to protect individuals’ physical integrity?
2. Have there been violations of the applicants’ rights guaranteed by Articles 6 and/or 8 of the Convention?
a) Could the expert opinion given by the Forensic Medicine Institute be considered to have enabled the determination of the applicants’ case, regard being had to the issues listed below?
aa) The finding that the problems might have started during pregnancy (see the report of the paediatric neurologist) was not elaborated. Instead, it was concluded that the prenatal care had been conducted in accordance with medical standards without any reasoning. Although the prenatal developments were relevant for the condition of the third applicant, no investigation seems to have been carried out into a possible causal link.
ab) The first applicant’s patient file at the Malatya State Hospital had gone missing. No record, a progress note or a test result, had been provided in respect of the labour. These facts were acknowledged in the expert opinion (see paragraph 16 and the conclusions of the Forensic Medicine Institute number 2). On the other hand, the applicants’ account concerning the birth history had contradicted the statements of the health personnel. Nevertheless, the Forensic Medicine Institute found that there was not sufficient medical evidence to establish a causal link between the birth and the third applicant’s condition and did not take into consideration the account given by the first applicant. The paediatric neurologist, for her part, held that there had not been any complication during the childbirth, relying on the overall length of labour and the date on which the first applicant had been discharged from the hospital.
ac) The expert opinion did not provide any explanation as to the possible reasons for which the third applicant was born with meconium aspiration syndrome with an apgar score of 3.
ad) The Forensic Medicine Institute relied on the assumptions that the third applicant’s development had been normal during the first five months and that he had not had most of the symptoms of birth hypoxia, other than ischemic lesions, which in turn might also have resulted from the sepsis in the newborn. However, there were medical records casting doubt on these assumptions; specifically, that the third applicant’s atrophy was not evident and that his condition was normal during the first five months.
ae) The contribution of the professor of gynaecology and obstetrics, the rapporteur of the specialist committee, to the drawing up of the expert opinion remained unclear.
In this connection, the State Party is invited to submit the curriculum vitae of the doctors who signed the expert opinion and to provide detailed information on the composition of the committee of the Forensic Medicine Institute which dealt with the applicants’ case.
b) In light of the foregoing, could it be held that the applicants’ case was examined properly (Van Kück v. Germany, no. 35968/97, §§ 62-63, ECHR 2003 VII)?
c) Could it be held that the applicants received a fair trial in accordance with the principles of equality of arms and adversarial proceedings (Mantovanelli v. France, no. 21497/93, §§ 33-36, 18 March 1997)?
3. Has there been a violation of Article 3 on account of the applicants’ suffering arising from the inadequacy of the investigation into the third applicant’s severe medical condition?
[1]1. Meconium is normally stored in the infant's intestines until after birth, but sometimes (often in response to foetal distress) it is expelled into the amniotic fluid prior to birth, or during labour. If the baby then inhales the contaminated fluid, respiratory problems may occur.
[2]1. A mixture of meconium, the first intestinal discharge from newborns, and amniotic fluid.
[3]1. To measure foetal heart rate and contractions. The test can indicate if the baby is not receiving enough oxygen because of placental or umbilical cord problems; it can also indicate other types of foetal distress.
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