FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 36420/97 
by Leonard SKRASKOWSKI 
against Poland

The European Court of Human Rights (Fourth Section), sitting on 6 April 2000 as a Chamber composed of

Mr M. Pellonpää, President
 Mr A. Pastor Ridruejo, 
 Mr L. Caflisch, 
 Mr J. Makarczyk, 
 Mr V. Butkevych, 
 Mr J. Hedigan, 
 Mrs S. Botoucharova, judges
and Mr V. Berger, Section Registrar,

Having regard to the above application introduced with the European Commission of Human Rights on 15 February 1993 and registered on 10 June 1997,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the Commission’s partial decision of 21 October 1998,

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

The applicant is a Polish national, born in 1946 and living in Żarów.

A. The circumstances of the case

The facts of the case, as submitted by the parties, may be summarised as follows.

Particular circumstances of the case

 The applicant's wife, born in 1947, had high blood pressure and suffered from a heart condition. On 19 February 1996 her physician referred her to a hospital. Apparently on the same date, doctors S. and S. in Żarów hospital examined her, gave her drugs against high blood pressure and refused admission. Allegedly, one of the physicians suggested that she should become his private patient.

On 1 March 1996 she felt unwell and three times called an ambulance from the State-run emergency service.  In the afternoon, during the first visit, she was given a prescription for certain drugs to reduce her high blood pressure. At midnight, during a second visit of the ambulance, a physician gave her an injection of the drug “Dexaven”. The applicant alleges that as a result of this injection her general condition worsened abruptly. The Government refute this allegation. The applicant insisted that she should be taken to a hospital, in particular in view of the referral of 19 February, but this was refused. She was taken to the hospital in the morning of 2 March 1996, where at 7.30 a.m., fifteen minutes after her admission, she died of myocardial infarction.

The applicant requested that criminal proceedings be instituted concerning his wife's death. On 16 July 1996 the Świdnica District Prosecutor requested the Poznań Medical Academy to prepare an expert report concerning the causes of her death. The report was submitted on 18 December 1996.

On 31 December 1996 the Świdnica District Prosecutor discontinued the proceedings, finding that no criminal offence had been committed. The Prosecutor had regard to the expert report, prepared by three experts: two cardiologists and forensic medicine specialist.

The applicant appealed against this decision. He stated that the decision was ill-founded and that, in view of her serious condition, his wife should have been taken to hospital much earlier. He complained that the investigations had lasted unreasonably long. Lastly, he submitted that it was impossible that his wife could have become mortally ill in a very short period without there being medical negligence in the handling of her case.

On 24 February 1997 the Wałbrzych Regional Prosecutor upheld the decision under appeal. He considered that the contested decision was lawful and that the lower prosecutor had duly taken into consideration the experts' conclusions. In view of the fact that the applicant had alleged that experts from Wrocław would have lacked impartiality, the District Prosecutor had requested that, in order to dispel any doubts as to the experts impartiality, the expert report be prepared by physicians from Poznań. It was true that the report had been submitted to the Prosecutor only on 18 December 1996, but, having regard to the heavy case-load of forensic medicine experts throughout Poland, this delay could not be considered abnormal. The report had been prepared by three experts - two cardiologists and one specialist in forensic medicine. The prosecutor stressed that there were no indications that there had been any personal relationship between the experts and the physicians who had given the medical treatment to the applicant's wife. 

The Prosecutor further had regard to the conclusions of the experts. They had established in their report that during the second visit of the emergency services, doctor K.S. had administered to the applicant’s wife an injection of "Dexaven", but they had not found a causal link between this fact and a subsequent rapid deterioration of her general condition. They had emphasised that the applicant's wife had received adequate medical care. She had died of myocardial infarction, which must have occurred after the second visit of the ambulance. It had been only during the third visit that she had symptoms of a dyspnoea (difficulty in breathing), typical in cases of cardiac insufficiency, and the physician had taken the correct decision to take her to a hospital on that account. Given the sudden nature of myocardial infarction, it could have developed so quickly as to cause her death within a short time, without there being any medical negligence to contribute to it. The experts concluded that it could not be assessed with absolute certainty whether the applicant's wife could have survived had she been taken to the hospital at the second visit of the ambulance. 

Regard being had to the fact that the experts had found no indications of negligence in the handling of the applicant's wife case, which involved a rapid myocardial infarction, the prosecutor decided that the lower prosecutor's office had been correct in finding that the persons who had given the treatment to her had no case to answer.

B. Relevant domestic law and practice

The Chambers of Physicians’ Act of 17 May 1989 established Chambers of Physicians as a professional organisation of physicians. Membership of the Chambers is mandatory. Disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before the organs of the Chambers, i.e. agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers.

Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years and striking off the register of physicians.

The procedure to be followed in disciplinary proceedings is governed by the Order on Procedure in Disciplinary Proceedings issued by the Minister of Health on 26 September 1989.

Under this Order, the agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. While investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses, and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant.

If information existing at the time when investigations are instituted, or gathered in the course of an investigation, is sufficient to charge a physician with professional misconduct, an agent shall draw up a motion to the court for a disciplinary penalty to be imposed, containing a detailed description of an alleged offence and written grounds.

Pursuant to Article 26 of the Order, the agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed. 

A complainant may lodge an appeal against this decision with the Chief Agent for Disciplinary Matters. A further refusal of the Chief Agent may be appealed against to the Principal Court.

Under Article 29 of the Order, if the court, having received a motion for a penalty to be imposed, decides that the case is ready for examination at a hearing, it orders that a hearing be held. A physician is summoned to a hearing, whereas his defence counsel and the agent are informed of its date.

Under Article 18 of the Order, in disciplinary proceedings the complainant is entitled to: submit a request for evidence to be taken, lodge with the disciplinary court an appeal against the agent's decision to discontinue the proceedings, and lodge an appeal against a decision of a first-instance court on the merits, but only on the question of responsibility. The complainant is entitled to have access to the case-file, but the agent can limit this access to documents, which are not covered by medical secrecy.

Pursuant to Article 5 of the Order, the proceedings before the court are public for members of the Chambers of Physicians.

Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions.  There is established case-law of the Polish courts to the effect that this liability of the State includes also liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.

COMPLAINTS

The applicant complains that his wife died as a result of the negligence of doctors who dealt with her case. He maintains that on 19 February 1996 she was refused admission to a hospital without reasonable medical grounds and contrary to the referral of her physician. He submits that the emergency services were negligent in taking their decisions as to the necessary course of action. He contends that she should have been taken to a hospital much earlier and her life could thus have been saved. He invokes in substance Article 2 of the Convention.

THE LAW

The applicant complains in substance under Article 2 of the Convention that his wife died as a result of the negligence of medical services.

Article 2 of the Convention, insofar as relevant, reads:

“1.  Everyone’s right to life shall be protected by law. …”

a) The Government first submit that the applicant, who requested that criminal proceedings be instituted in order to identify the person or persons whose acts had caused his wife’s death, could also have availed himself of other remedies, available under Polish law. He could have requested that disciplinary proceedings be instituted against the physicians involved under the provisions of the Chambers of Physicians’ Act of 1989. He could also institute civil proceedings in tort under Article 417 of the Civil Code, seeking that civil liability of the State Treasury be established. They stress that under established case-law of the Polish courts, physicians employed in the State-run hospitals and emergency services are regarded as agents of the State for the purposes of this provision of the Civil Code. Thus, civil action should be regarded as one of the domestic remedies available to the applicant. The use of this remedy could result in a judicial decision awarding compensation to the applicant, if negligence of the physicians was established.

They conclude that the applicant has not exhausted two fundamental remedies provided for under Polish law and that his application should therefore be declared inadmissible .

The applicant does not address this issue.

The Court recalls that, pursuant to Article 35 § 1 of the Convention, it can only deal with a matter after exhaustion of domestic remedies and within a period of six months from the date on which the final decision was taken. In order to comply with the rule, normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged (the Aksoy v. Turkey judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, pp. 2275-76, §§ 51-52).

The Court observes that, by lodging a request that criminal proceedings be instituted against persons whose actions had allegedly caused the death of the applicant’s wife, the applicant was trying to set a prosecution in motion based on his complaints which he is also raising before the Court.  The Court notes that the applicant chose one of three remedies available to him under Polish law and obtained a final decision of a highest competent prosecuting authority, which had investigated his allegations. From then on, it was impossible for the applicant to pursue his efforts to have criminal proceedings against responsible persons instituted.

The Court further observes that the Government do not contend that the remedy of which the applicant availed himself was insufficient or irrelevant for the purpose of establishing a causal link between the acts of persons acting as the agents of State and the death of a victim, or for determining liability for such acts.

The Court further considers that a requirement of using all three legal avenues indicated by the Government in order to satisfy the requirement of exhaustion of domestic remedies would place an undue burden on applicants complaining about alleged breaches of Article 2 in situations similar to that in the present case, in particular taking into account the character and purpose of the investigations conducted by prosecuting authorities, referred to above. 

The Court concludes that the application cannot be declared inadmissible for non-exhaustion of domestic remedies but it will take into consideration, in the examination of the substance of the application, the existence of the legal avenues whereby the applicant could have his complaint considered by the domestic authorities (see below).

b) As to the substance of the complaint, the Government submit that the system provided for by Polish law in order to establish causes of death in a hospital run by the State or by a municipality does comply with the procedural obligations of the State under Article 2 of the Convention. According to the established case-law of the Convention organs, the obligation by the State to protect the right to life implies, apart from the duty to prosecute those who put life in danger, that positive preventive measures should be enacted.  This means, in particular, that hospitals should have regulations for the protection of patients and that there should be an effective system of judicial investigation into medical accidents.

The Government submit that State-run hospitals employ physicians who by law must be members of the Chambers of Physicians. The Chambers of Physicians’ Act and the Order on Procedure in Disciplinary Proceedings provide a legal framework for disciplinary proceedings in cases of alleged professional misconduct. This legal measure allows for a determination of the professional responsibility of physicians. The penalties provided in the Act include deprivation of the right to practice medicine, which  should be considered a very serious penalty. Moreover, in case of alleged infringement of rights protected under Article 2 of the Convention, recourse to criminal proceedings under Article 152 of the Criminal Code, as applicable at the material time, was also available. These two legal measures engage directly a physician who may thus be held responsible for his or her negligence in the exercise of professional duties.

The Government emphasises that physicians employed in State-run hospitals are considered State agents for the purposes of the civil liability of the State Treasury under the provisions of Article 417 of the Civil Code. Consequently, professional misconduct of a physician established in civil proceedings may result in an award of compensation from the State Treasury to the injured party.

The Government further argue that the impartiality of the experts appointed to investigate the case is not open to question. According to the conclusions of their report, the treatment given to the applicant’s wife had been appropriate. In particular, no causal link had been established between administration of the drug “Dexaven” during the second visit of the emergency services and heart infarction, which had later caused her death. Given the  massive nature and location of the infarction, it was impossible to establish whether, had she been taken to a hospital after the second visit of the ambulance, her life could have been saved.

The Government conclude that the procedural requirements of Article 2 have been satisfied and that there is no appearance of a violation of this provision of the Convention in the present case.

The applicant states that the investigations into the causes of his wife’s death were insufficient.

The Court recalls that the first sentence of Article 2 obliges the States not only to refrain from "intentionally" causing death, but also to take adequate measures to protect life. The Court considers that Article 2 of the Convention imposes that, even in cases such as the present one, in which the deprivation of life was not the result of the use of lethal force by agents of the State but where agents of the State potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public and in particular to the relatives of any victims (see, mutatis mutandis, Eur. Comm. HR, no. 23412/94, Dec. 30.08.1994, D.R. 79, p. 127).

In particular, the positive obligations a State has to protect life under Article 2 of the Convention include the requirement for hospitals to have regulations for the protection of their patients’ lives and also the obligation to establish an effective judicial system for establishing the cause of a death which occurs in hospital and any liability on the part of the medical practitioners concerned. The procedural element contained in Article 2 of the Convention imposes the minimum requirement that where a State or its agents potentially bear responsibility for loss of life, the events in question should be subject to an effective investigation or scrutiny which enables the facts to become known to the public, and in particular to the relatives of any victims. If there is no indication that the authorities arbitrarily assessed the evidence before them, the Court must rely on the facts established by those authorities (see Eur. Comm. HR, no. 20948/92, Dec. 22.5.1995, D.R. 81, p. 40; cf. also no. 23412/94, Dec. 30.8.1994, D.R. 79-A, pp. 127, 135-137).

The Court observes that, following his wife’s death, the applicant requested the prosecutor to investigate the relevant circumstances. The prosecutor ordered the Poznań Medical Academy to submit an expert report concerning the treatment afforded to the applicant’s wife and the reasons for her death.  Later, by a decision of 18 December 1996, the prosecutor discontinued the investigations, having regard to the conclusions of the report, prepared by two cardiologists and a forensic medicine specialist. The applicant appealed against this decision. The higher prosecutor, dismissing his appeal, emphasised that, having regard to the applicant’s allegations that experts from Wrocław would not be impartial, the District Prosecutor had requested that in order to dispel any doubts as to the impartiality of the experts, another expert report be prepared by physicians from Poznań. In this connection, it was stressed that there were no indications that there had been any personal relationship between the experts and the physicians involved in the case. The District Prosecutor further considered that the impugned decision was lawful and that the lower prosecutor had duly taken into consideration the experts' conclusions that no causal link could be established between the manner in which the applicant’s wife had been treated and her subsequent death.

The Court further observes that it was open to the applicant to bring a civil action in tort against the State Treasury, seeking compensation for his wife’s death. He could also have instituted proceedings in order to establish disciplinary responsibility of the medical practitioners concerned by initiating a procedure provided for by the laws governing the professional liability of physicians. The Court notes that under applicable provisions, membership of the Chambers of Physicians, charged under these provisions with the task of conducting such proceedings and giving binding decisions in this respect, is mandatory for all physicians, including those employed in the State-run hospitals. 

In the light of the above, the Court finds no indication that there has been any failure to provide a mechanism whereby criminal, disciplinary or civil responsibility of persons who may be held answerable could be established.

The Court further finds no indication that the prosecuting authorities arbitrarily assessed the evidence at their disposal. Given that no fresh evidence has been brought before the Court, it must rely on the facts established at the domestic level. In the circumstances of the present case, it cannot find any appearance of negligence on the part of medical staff. Accordingly, there is no appearance of a violation of Article 2 of the Convention.

It follows that the application must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 and rejected pursuant to Article 35 § 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE.

Vincent Berger Matti Pellonpä 
 Registrar President

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