Z v. Poland

The applicant’s pregnant daughter died in 2004 of septic shock at Barlicki Hospital in Poland. The applicant alleged her daughter’s death was caused by negligence and filed claims under the Convention for the Protection of Human Rights and Fundamental Freedoms (“Convention”) for violation of her daughter’s rights to life under Article 2, to freedom from sex discrimination under Article 14, and to freedom from inhuman and degrading treatment, and for violations of her and her daughter’s rights to autonomy, privacy and family life under Article 8.

In early May, the applicant’s daughter found out she was 4-5 weeks pregnant. She had developed ulcerative colitis (UC) and was experiencing symptoms including nausea, abdominal pain, vomiting and diarrhea. Between early May and late September 2004, she was treated at a variety of hospitals in Poland on ten different occasions for stays ranging from 1-2 days to three-and-a-half weeks. She was first diagnosed with UC in mid-May and underwent tests including endoscopy and fibro-sigmoidoscopic examination at Pila Hospital. In June and July she was twice admitted as an in-patient to a second hospital for multi-week stays, and was diagnosed with abscess. She left the hospital on July 28. The next day, she was re-admitted and underwent an operation to remove the abscess.

In mid-August, she was admitted to a third hospital and diagnosed with a rectovaginal fistula and a new abscess, which was removed. During that stay, her doctor was aware of her UC diagnosis, but declined to perform a full endoscopy. The applicant alleged that the doctor’s refusal was on the basis of conscientious objection, while the Government contended that the doctor’s decision was based on medical grounds.

On September 4, the applicant’s daughter was transferred to a fourth hospital when her condition deteriorated due to apparent sepsis. She immediately underwent a surgical procedure, during which doctors removed her appendix. After the operation, she was transferred to an intensive care unit at Barlicki Hospital where she continued to decline. She received six operations over the course of the next twenty-four days, including removal of her fetus, which had died, and removal of her uterus. She died on September 29, 2004.

In March 2005, the district prosecutor opened a criminal investigation into possible unintentional homicide. In 2008, the investigation was terminated, finding lack of due diligence in failing to conduct certain medical tests, but no medical malpractice. The applicant appealed, and the prosecutor’s decision was upheld.

Separately from criminal proceedings, two disciplinary actions were launched in 2005. Neither found evidence of malpractice and both were terminated in late 2006. The applicant also filed a compensation claim in civil court in 2007. It was dismissed in 2011 without a written judgment. The applicant did not appeal.

The applicant then filed a claim with the European Court of Human Rights.

The Court found that the case did not implicate the state’s positive obligation under Article 2 to take steps to safeguard the right to life. The Court reasoned that, although the actions of health-care authorities may in some cases involve Article 2 responsibilities, matters of provider negligence are insufficient to implicate a State’s positive obligation where that State has made “adequate provision to secure high professional standards among health professionals and the protection of the lives of patients.” Therefore, the Court evaluated applicant’s claim under the implied procedural arm of Article 2, which requires effective and appropriate judicial and regulatory systems to protect the right to life.

The applicant contended that the Government’s investigations into her daughter’s death were ineffective and delayed.The Court acknowledged that procedural efficacy was important to cases involving hospital deaths, which implicate broader public safety. Nonetheless, the Court held that, given the complicated medical questions and expert analyses required in this case, it was not a substantial delay for the case to have been stayed for two years and four months. The Court also found no grounds on which to doubt the quality of the investigations and held that they met the level of diligence required by Article 2.

The applicant also contended that the Government failed to provide a clear legal and regulatory framework to ensure adequate prioritization of the rights of a pregnant woman in relation to her fetus and to regulate doctors’ use of conscientious objection clauses. The applicant claimed that these failures, in combination with Poland’s restrictive and unclear abortion laws, created the atmosphere in which doctors denied her daughter necessary care. Despite having previously held that Polish law lacked effective mechanisms governing a pregnant woman’s ability to secure a legal abortion on the basis of danger to her health, the Court found that, in this case, the applicant failed to submit any evidence that the decision not to perform a full endoscopy was based on conscientious refusal, rather than medical grounds. Therefore, the Court rejected the regulatory claim.

The Court also rejected as unfounded applicant’s claims of sex discrimination on the basis of pregnancy under Article 14 and of inhuman and degrading treatment based on a deliberate failure to provide adequate treatment. The Court held that the applicant failed to establish that her daughter’s care deviated from appropriate standards or, if it did, that the deviation was due to her pregnancy.

Finally, the Court rejected the Article 8 claim for violation of the right to privacy and family life.The Court acknowledged that denying a parent access to the medical records of a deceased child is contrary to Article 8 § 1, which confers an obligation of full disclosure on authorities. However, the applicant failed to establish that she was in fact denied access to her daughter’s records. To the contrary, she consulted them during the criminal investigation. The second half of the Article 8 claim was that applicant and her daughter were not provided with full information about her daughter’s health and treatment options, especially regarding continuation or termination of pregnancy, in violation of their right to autonomy. The Court held that the claim would have been appropriately pursued through appealing her civil claim and, therefore, rejected it based on non-exhaustion of domestic remedies under Article 35 §§ 1 and 4.

Regarding the procedure for the applicant’s other claims, the Court rejected the Government’s argument that the applicant had failed to exhaust domestic remedies of her other claims. The Government maintained that the case should have been brought in domestic civil court first rather than by instituting criminal proceedings because the case concerned alleged liability for medical malpractice, which could have been established and fully redressed through civil proceedings. The Court held that pursuing the claims through the criminal system under the circumstances of the case was sufficient to exhaust domestic remedies.

“The Court accepts that it cannot be excluded that acts and omissions by the authorities in the field of health-care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision to secure high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or failure to coordinate by health professionals in the treatment of a particular patient, assuming such negligence to have been established, are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.” Para. 76.

“Even if there had been a difference in the treatment of the applicant’s daughter due to her pregnancy, the Court observes that it cannot be excluded that that difference may have arisen for medical reasons. In particular, there is no convincing evidence which would indicate that Y was deliberately refused proper medical treatment on the ground of her pregnancy.” Para. 134.