CEDH · CASELAW;CLIN;ENG — 2 juin 2009

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Romania - 31675/04 Judgment 2.6.2009 [Section III] Article 8 Article 8-1 Respect for private life Absence of means of ensuring reparation for bodily injuries caused by medical error in State hospital: violation   Facts : In 1996 the applicant was admitted to hospital for the removal of a skin tag on her lower jaw and a post-operative healing problem affecting her right thigh. Doctor B. recommended plastic surgery and performed a blepharoplasty (corrective eyelid surgery). The applicant had to be taken into hospital and operated on again since, following the blepharoplasty, her eyelids would not close properly because of the post-operative scars. She was re-admitted to hospital the same year and this time Dr B. performed a third blepharoplastry as well as more plastic surgery. These operations resulted in paralysis of the right side of her face and other after-effects requiring specialist medical treatment. Several further operations had to be performed. In 1998 the applicant lodged a criminal complaint against Dr B. and applied to be joined as a civil party. During the proceedings the doctor’s actions were characterised as unintentionally causing personal injury. The criminal proceedings produced no result and were definitively closed by a 2004 decision of the county court ruling that the doctor’s criminal responsibility was now time-barred. The same year the applicant brought a civil action for damages against Dr B. and in 2005 also sued the hospital where she had been operated on. In 2005 the civil court found that the doctor had not informed the applicant of the possible consequences of the planned operation or sought her consent other than when she was under the effects of the anaesthetic. The court ordered the doctor to pay damages in respect of pecuniary and non-pecuniary damage. It dismissed the applicant’s action against the hospital, however, on the ground that the hospital could not be held liable for the actions of the doctor. The court of appeal upheld the judgment. The High Court of Cassation and Justice quashed the impugned decision and remitted the case to the county court. After noting that the applicant had withdrawn her claim for pecuniary damages, the court confirmed that the doctor had committed medical errors and found that he should have obtained the applicant’s written consent to the plastic surgery, which had been a new procedure at the time it was performed, and should also have informed her of the risks involved. In 2008 the court of appeal held that the applicant’s statement withdrawing her claim was valid and dismissed the appeals lodged by both parties. In the meantime, in 2006, enforcement proceedings had been issued against Dr B. by the court of first instance but had remained unsuccessful because the doctor had become insolvent on account of outstanding maintenance payments and a voluntary act of partition of real property he had concluded after judgment had been entered against him. Law : Article 8 – The applicant complained that the proceedings seeking to have the doctor held liable had been ineffective. In the instant case the applicant had had formal access to a procedure enabling her to secure a finding of liability against the doctor who had operated on her and, if appropriate, to obtain compensation for personal injury. However, the Romanian courts had not given a final ruling on her compensation claim until more than nine years after the lodging of the criminal complaint and civil-party application, by which time the doctor’s criminal responsibility was time-barred. Furthermore, she had not received the sum awarded to her for non-pecuniary damage because, a few days after being ordered to pay compensation to the applicant, the doctor had divested himself of his property and had become insolvent, thereby releasing him from his obligations towards the applicant. The consequences for the applicant of the doctor’s insolvency had also been aggravated by the fact that no medical negligence scheme existed in Romanian law at the time. While the domestic law had since changed, making it compulsory for doctors to take out professional civil-liability insurance, the changes did not apply retrospectively to the applicant’s situation. Moreover, in refusing to find the hospital civilly liable, the domestic courts had deprived the applicant of effective legal protection of her physical integrity despite the fact that there was some authority in the case-law of the country’s highest courts and in the legal doctrine to support a finding of liability on the part of hospitals for the acts of doctors employed by them. The applicant, whose right to compensation had been recognised by the Romanian courts, had had no legal remedy available to her by which to render that right effective. Conclusion : violation (six votes to one). Article 6 – As the case concerned an action for damages in respect of personal injury sustained by a person who was aged 65 when she lodged the civil-party application, the judicial authorities should have exercised special diligence. While the medical issues in the case had been of some complexity, there was no justification for the fact that the proceedings had lasted for over nine years. Conclusion : violation (unanimously). Article 41 – EUR 20,000 to cover all heads of damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes