Case 508

The plaintiff had undergone surgery on April 13, 1999. On November 26, 2001, during preoperative procedures for a subsequent surgery, the doctors diagnosed her, preoperatively, with hydronephrosis, or water in the kidney, which is usually caused by an obstruction of free flow of urine from the kidney. During her procedure, the doctors identified silk catguts, or cords prepared from natural fibers found in the walls of animal intestines, tied around her ureter. Because the plaintiff had undergone two surgeries prior to her 1999 procedure, in 1962 and 1984 respectively, the defendant respondents (the physician who had operated on the plaintiff and the hospital)  had argued that causation could not be sufficiently established to render them liable under domestic law.

The Burgas District Court, on March 10, 2009, granted plaintiff relief in the form of compensation and non-pecuniary damages of 15,000 BGN under domestic statutes regarding the “negligent performance of surgical operations” and the hospital’s status as Assignor. On appeal, the Appellate Court of Burgas repealed the decision based on an assessment of the evidence and, additionally, declared the damages awarded to be excessive.

The Court revoked the appellate decision inasmuch as it had found the respondents not to be liable, but upheld it in part with respect to the amount of damages.

Regarding the claim against respondents for negligent performance of surgical operations, the Court, examining the expert testimony and audio evidence, found that the appellate court’s failure to take into account the “consistent witness testimony” of three surgeons who had taken part in the 2001 procedure, and who had seen the ureter of the kidney tied off, constituted a procedural violation of the domestic Civil Procedure Code, reasoning that “[A]n assessment of all evidence under the case, including the construction of a finding on the causal—effect relationship, is an obligation of the court.”

However, with respect to the amount of damages, the Court, accounting for medical expert opinions demonstrating a diminishing level of plaintiff’s disability due to kidney dysfunction, upheld the appellate court’s determination that the 15,000 BGN awarded by the district court was excessive. The Court of Cassation thus reduced the damages to 10,000 BGN.

“Given the facts thus established under the case and the relations between them, in the contested decision the appellate court had not decisively considered the above and has adopted in essence the response of the experts for "the most probable cause" as insufficient to justify a causal link. Without considering other, mentioned by the experts and comparable in likeliness reasons, that should have been reasonably excluded; the appellate court has built its conclusions in substantial breach of procedural rules.” Page 4.

“Given the above, the answer to this question, crucial for the outcome of the dispute, is positive and the cause of action is proven, even if the kidney of the plaintiff was saved and was functioning as an organ, where the conclusions of the experts on the case should be fully accepted. Reasons for the health disorder found by the experts, accompanied by pain and suffering, and requiring surgery in 2001, was the partial impassability of the right ureter. The reason for this functional impassability is the fact that the ureter was affected by a ligature, filled-in with silk thread, i.e. it was tied. This is what the defendant in the capacity of operating surgeon has done on April 13^th, 1999 in his private clinic. The kidney survival in this state for a period of 945 days after the operation, theoretically commented in terms of medical probability and maintained by the defendant’s defense as impossible, does not exclude the positive conclusion for the above facts. When a fact from the reality is objectified, the standing that this is impossible to have happened is unacceptable.” Page 5-6.