Case 572 (T.D.Z. Case)

T.D.Z. suffered from cancer and was prescribed an active treatment in 1998, which obtained good results. In 2002, T.D.Z. required chemical injections in order to induce binding menopause after which she was required to take hormone replacements. The Ministry of Health, however, was unable to provide T.D.Z. with the injections (Zodalex®) for April and May 2004 due to disorder and uncertainty regarding the supplier. T.D.Z. was therefore required to purchase her own injections for that time and the following month. Due to her condition and lack of financial ability to purchase further injections, the patient was required to receive surgery to castrate her ovaries. This surgery was followed with medical prescription and hormone Femara® intake, a course of treatment which doctors advised should not be interrupted. As such, T.D.Z. was purchased the hormone herself because the Ministry of Health continued to have uncertainty about the medicine supplier.

T.D.Z. claimed in 2005 that “a criminal delay in the provider’s contracting procedure regarding life-saving and expensive medicines; this situation makes it impossible to receive this medicines”. As a result, metastases spread in T.D.Z. and she required chemotherapy treatment. This situation caused T.D.Z. not only a great deal of money, but also stress and insecurity, and the need to work two jobs while caring for her child. Metastases were later found on her liver.

She claims pecuniary and non-pecuniary damages for the State’s failure to provide her with her medication and adequate treatment, specifically for the Minister of Health’s omission of its responsibilities during the period of January 1, 2004 to March 1^, 2005 in his capacity as executor of healthcare regulations (Public Health Act, Ordinance No. 23/2000).

Under Bulgarian law, patients with cancer had the right to request that the Minister provide free medicines; the Republic of Bulgaria Budget contained money to provide for such requests. T.D.Z. claimed that the Minister’s omission of responsibilities include contract non-delivery, delayed and unrealized proceedings as per Public Procurement Law, and the failure to provide necessary medicines in a timely manner. Her claim for non-pecuniary damages resulted from postponing treatment of the existing disease, acceleration and increase of the ailment, reduction of the periods in which at least severe signs of the ailment were not manifested, and unnecessary castration. These damages included suffering caused by the health condition, as well as, poor quality of life, disability, inability to fulfill parenting obligations, depression, preclusion of a normal social life, and inability to plan for future.

This case has been affirmed on appeal to the Court of Appeals and the Supreme Court of Cassation.  

The Court first noted that under the Public Health Act, Bulgarian citizens were “entitled to the free use of expensive treatment outside of the scope of the mandatory health insurance system” and that such guarantee was financed via national and municipal budgets.  Reviewing evidence demonstrating the disarray of the Ministry of Health’s medicine procurement process, the Court determined that T.D.Z. was forced to repeatedly purchase medicines on her own because the Ministry of Health only supplied her medication periodically and irregularly. The Court held that the Ministry of Health should be ordered to compensate T.D.Z  for certain resulting pecuniary damage.

The Court further found that compensation for non-pecuniary damage was called for considering how the defendant’s actions caused, inter alia, a delay in T.D.Z’s treatment and acceleration in her disease, unnecessary removal of ovaries, her reduced working capacity, feelings of depression and significant other emotional pain and suffering. In judging these damages, the Court looked to the fact that the Ministry of Health’s failure to lawfully provide adequate treatment affected T.D.Z.’s health, which was a crucial individual right. The defendant’s omissions were deemed nonfeasance of its principal obligation to provide medical assistance and care.

"As per Article 1 of SMRDA (title amendment in force July 12^th, 2006), State liability in damages caused to citizens by illegal acts, actions or omissions of its organs and officials or in connection with administrative activity execution, as when damages have been caused by unlawful act or omission, shall be established by the court where the claim for compensation had been presented. The wording is based on the general principle “do harm to no-one” and rules the preconditions under which the liability to repair damages originates. Substantiating liability (which when implemented establishes the right to compensation for damages) includes the following elements: damage, unlawful act, action and/or omission of any state authority or official in connection with administrative work execution; causal connection between he injury and the act, action, and/or omission” (Page 14).

“Lack of medical treatment was not due to T.D.Z.’s behavior. . . . It is common ground between the parties, and the evidence attached to the case documentation demonstrates, that T.D.Z. suffers oncologic disease. Because of this fact and according to the current operative legislation in our country, Plaintiff is entitled to free use of expensive treatment not covered by compulsory health insurance in the order determined by the Minister of Health. That is, when oncologic ailment is diagnosed, prescribing expensive medicines as per the order determined by the special ordinance is mandatory” Pages 22-23.

“Compensation for non-pecuniary damage is aimed to repair, in a relatively full amount, endured sorrow and suffering, as on the grounds of Article 52 of the Law on Obligations and Contracts (LOC), non-pecuniary damage compensation is assessed by the court according to the principle of justice. Justice as a criterion for determining the amount of compensation for moral (non-pecuniary) damages cannot be applied in the abstract, but only based on the assessment of a number of specific objectively existing circumstances. The court takes into account that the Defendant’s omission affected Plaintiff’s health (as one of the most important rights of the individual is to achieve the best possible state of physical and mental health). The court also takes into account the State’s omission (consisting in non-feasance of its principal obligation to create conditions for providing medical assistance and medical care in case of illness) in light of the age of T.D.Z., the fact that this omission reflected on her whole lifetime and both her personal and public life, that she experienced permanently manifested feelings of helplessness and hopelessness leading to an inability to plan her future and a permanently reduced working capacity of 95%, and the socioeconomic conditions in our country.” Page 26.