CSOMA v. ROMANIA

The applicant in this case was a nurse who was pregnant and was being followed by a gynecologist, Dr. P.C,  at the hospital where she had been working.  At the 16^th week of her pregnancy, hydrocephalus was diagnosed with the fetus and the pregnancy was determined to be interrupted. To induce the abortion, medications and injections were administered. Two days after her admission to the hospital, the applicant had fever and shivers; she wasn’t being followed by a doctor and was only being given painkillers. The following morning, the applicant discharged the fetus in the ward and started to bleed heavily. She was then diagnosed with disseminated intravascular coagulation (DIC) and transferred to the County hospital that was 30km away with the assistance of only a nurse. At the County hospital, the applicant underwent total hysterectomy and bilateral adnexectomy.

The applicant complained before Covasna County College of Doctors that Dr. P.C. had committed a medical error. After delegating the task of assessing the issue to another Doctor from the County hospital, the College concluded that no medical negligence could be identified from the medical follow-ups performed for the applicant and the decisions subsequently made; It recognized the procedural errors manifested in the missing of the consent form, the summary of lab test, and an ultrasound description of the location of placenta.  The treatment of risky cases in facilities possessing the required standard for dealing with complications was also recommended.

The applicant lodged her criminal complaint against Dr. P.C with the charges of “grievous unintentional bodily harm and negligence in the conduct of a profession”; she subsequently joined it with her civil claim. [Para. 15] With the order of the investigating officer, the Sfântu Gheorghe Forensics Department reported that no medical negligence had been committed as the method used to induce the applicant’s abortion could be used at any gynaecological unit in a hospital. The report stated that only because a lab test wasn’t found in the applicant’s medical records didn’t mean the test hadn’t been done at all. The report also noted that the DIC had been detected on time and that it could cause the death of the applicant. The applicant objected the experts report stating that it was incomplete as it failed to address important questions related to her diagnosis and treatment.

Subsequently, the Târgu Mures Forensics Institute provided a medical opinion that stated the lack of medical information to conclude that the hydrocephalus had been surely diagnosed. It also noted the absence of the lab tests, the ultrasound description of the placenta’s location, the consent form and the standard medical form that was required to be filled in case of a pregnancy interrupted in less than 14 weeks. The report noted that the ‘haemorrhaging’ could have potentially been caused by ‘the rupturing of blood vessels’ and that the DIC diagnosis hadn’t been supported by lab tests. [Para. 18]

Because the two medical reports haven’t clearly determined the existence of medical negligence on the part of Dr. P.C, the prosecutor requested an opinion from the National Forensics Institute; the Institute confirmed the absence of medical negligence. The prosecutor, the supervising prosecutor and the County Court approved the decision not to prosecute Dr. P.C.

The applicant lodged her complaint before the European Convention on Human Rights (ECHR) under Articles 2, 6 and 13 of the European Convention on Human Rights (the Convention). She argued that she wasn’t provided with the necessary information regarding the risks involved in the procedure she underwent and that this negligence had put her life in danger and left her being no more capable to bear children. She further stated that the authorities providing the medical opinions were partial and she was denied justice for the injury she had claimed had been inflicted upon her. The applicant stated that the procedure was not urgent and should not have been performed without the required preparation in place. She stated that Dr. P.C failed to refer her to a hospital that could be well prepared for the complications. She further argued that the Doctor failed to call ambulance on time and to send a physician with her.

The government responded that being a nurse herself, the applicant was aware of her condition and the consequences of the procedure after she was voluntarily hospitalized. It also argued that she had participated in all of the proceedings at domestic level and those decisions were reasoned and based on technical reports. The applicant had consented to the procedure although the Doctor failed to obtain her written consent while the complications were unusual and unanticipated.

The government argued that the applicant had failed to exhaust domestic remedies while the applicant argued that her damages wouldn’t be well remedied in tort actions and could have best been remedied with criminal prosecution. The applicant also argued that the domestic case-law the government supported its argument with had manifested how her case had unfairly been adjudicated by the authorities.

The ECHR decided to investigate the applicant’s complaint under Article 8 of the Convention (the right to respect for private and family life) instead of the provisions stated by the applicant. It declared the application admissible and joined the arguments of the government with the questions on the merits. The ECHR noted that there had been interference against the applicant’s right to private life and the Doctor’s failure to obtain her consent wasn’t justifiable. It rejected the argument that the Doctor was not required to follow the standard procedures in informing the applicant of the risks of the procedure because she was a professional nurse. The ECHR found that there was no absolute urgency justifying the Doctor’s failure to perform lab tests and to check whether or not the required facilities for dealing with complications were in place; It also noted that the expert reports failed to address this question of urgency.

The ECHR noted that in spite of how apparent it had been, the reports failed to show the negligence on the side of the Doctor; the prosecutor also failed to “weigh the conflicting factual issues presented by the case”. [Para. 55] The ECHR found it “unacceptable that an operation could be performed without respect of the rules and the safeguards created by the domestic system itself.” [Para. 57] The ECHR rejected the applicant’s argument on the futility of tort remedy as a justification of her failure to exhaust domestic remedies. However, it considered the impact of the expert reports (that had found no negligence on the Doctor’s part) in her pursuit of an effective remedy. It further held that the “lack of any fault in the hospital’s handling of the matter, coupled with the developing domestic case-law concerning hospitals’ liability for medical acts, renders an action for compensation against the hospital too weak a remedy to be deemed effective”.  [Para. 65]

The ECHR considered it to be unreasonable to conclude that the applicant could lodge another civil action (additional to one she had lodged before the College of Doctors) with a Civil Court. The ECHR held that the failure of the Doctor to sufficiently inform the applicant of her treatment and its risks had been an interference with her right to private life. It thus concluded that the existing domestic system “made it impossible for the applicant to obtain redress for the infringement of her right to respect for her private life” and found the State to be in violation of Article 8 of the Convention. [Para. 68] It had awarded the applicant a compensation for non-pecuniary damage.

“….the Contracting States are bound, by virtue of this obligation, to adopt the necessary regulatory measures to ensure that doctors consider the foreseeable consequences of a planned medical procedure on their patients’ physical integrity and to inform patients of these consequences beforehand, in such a way that the latter are able to give informed consent. In particular, as a corollary to this, if a foreseeable risk of this nature materialises without the patient having been duly informed in advance by doctors, the State Party concerned may be directly liable under Article 8 for this lack of information.” [Para. 42]

“…the Court reiterates that in the specific sphere of medical negligence, if the legal system affords victims full access to civil proceedings or to disciplinary proceedings which may lead to liability for medical negligence being established and a corresponding award of compensation, this could in principle be sufficient to discharge the State’s positive obligation to provide an effective judicial system.” [Para. 43]