Csoma v. Romania

In the case Csoma v. Romania (Application no. 8759/05) the ECtHR found a violation of Article 8 of the ECHR in connection with the inefficient remedy provided for a victim of forced sterilisation Romania.

Csoma who worked as a nurse at the local hospital fell pregnant 2002. In the second trimester of the pregnancy a test showed that her foetus has hydrocephalus. After consulting her doctor, Dr. P.C., who worked in the same hospital as the applicant, she decided to have an abortion. For this reason she was admitted to the town hospital where she received medicationvia infusion to induce abortion, but to no avail. The next day, concentrated glucose was injected into her stomach with the same purpose after which the foetus stopped moving. After the injection  she developed fever but she was not seen by a doctor and was only given painkillers. The following morning her body expelled the foetus why lying still in her bed and she started bleeding profusely. The doctors could not stop the bleeding and she was diagnosed with disseminated intravascular coagulation (DIC). She was then transfered to another hospital where, due to her critical condition, the doctors had to remove her reproductive organs.

After consulting several specialits, the applicant lodged a complaint with the with the County College of Doctors. The College in its opinion found no direct link between the injection given to the applicant and the DIC. However it mentioned several deficiencies of the applicant's medical records, in particular the lack of: her wirtten informed consent, the ultrasound scans of the precise localisation of the placenta and the summary of lab test results.

In 2002 the applicant also lodged a criminal complaint against Dr P.C. based on the charges of grievous unintentional bodily harm and negligence in the conduct of a profession. She also stated that she joined a civil claim to her complaint as well. During prosecution two medical expert reporst were filed. In the first one, the forensic intstitute "concluded that no medical negligence had been committed, noting that the method chosen for inducing the abortion could be performed in any gynaecological hospital unit". The applicant lodged a complaint against this opinion and brought up several addition questions concerning the circumstances of the case. These question, however, remained unanswered. The second report reached the same conclusion but it also highlighted the missing documents from the applicants medical files. Based on these opinions the prosecutor decided not to bring criminal charges against Dr. P.C. in 2003. This decision was upheld by the supervising prosecutor and the county court as well. The prosecutor a couple of months later asked the Mina Minovici National Forensics Institute to review all the medical reports and to issue an opinion on the medical acts performed in the case. The Forensics Institute confirmed the conclusions of the first medical report and thus excluded any medical negligence. "It nevertheless observed that the doctor had failed to discuss the proposed procedure and the possible complications with the applicant and her family and to obtain her signature expressing her written consent to the proposed procedure."

The applicant - relying on Articles 2, 6 and 13 of the Convention - complained that

she had not been properly informed of the risks of the [abortion procedure apllied in her case] and that because of medical negligence her life had been endangered and she had become permanently unable to bear children. She considered that the investigation of the case had been superficial and that the forensic authorities had lacked impartiality in issuing the medical expert reports, leading to a situation in which she had not obtained recognition of the serious bodily harm inflicted on her and a guilty person had been protected.

Violation of Article 8

The Court however - referring to Pretty case - decided to examine the case under Article 8 of the ECHR. For doing so, it reiterated the applicable principles:

- Contracting States are under an obligation to introduce regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives;

- Contracting States are bound to adopt the necessary regulatory measures to ensure that doctors assess the foreseeable consequences of a planned medical procedure and inform their patients of the consequences prior to the intervention in order to enable patients to give informed consent. The State Party concerned may be directly liable under Article 8 for the lack of information; and

- If the legal system of a State 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.

The ECtHR emphasized that domestic legislation expressly provided for the patient’s right to information and to give informed consent and for the doctor's obligation to obtain, informed consent prior to a medical procedure. However it could not find any explanation for why that consent was not obtained in the applicant's case. In this regard, the Court rejected the Government’s argument "according to which the fact that the applicant was a trained nurse dispensed the doctor from following established procedures and informing her of the risks involved in the procedure". The ECtHR found no reason for the urgent performing of the intervention. This question remained however unanswered since the medical reports filed during the prosecution did not deal with it.

The Court thereafter proceeded to examine whether the remedies at the applicant’s disposal were sufficient to provide her redress. It noted that - as the applicant attached a civil claim to her criminal complaint - she could have - in theory - obtained an assessment of and compensation for the damage, therefore this remedy was appropriate. The ECtHR thereafter proceeded to examine the investigation.It found in this regard that the prosecutor did not weigh the conflicting factual issues presented by the case: he did not take into account the medical expert report prepared for the College of Doctors, and also failed to take the opinion of the Forensics Institute.

 

The Court further examined the Government's claim that a civil action against the doctor and the hospital could have constituted an effective remedy. It noted that it would have been impossible for the applicant to raise the issue of medical negligence again in a new set of proceedings since -  at the time when the facts of the case occured - the system did not allow for a new forensic report to be commissioned if the Forensics Institute had already given its opinion. Taking into account the consistency with which the expert reports excluded the existence of medical negligence, the Court found that a civil claim would not have been an effective remedy. In relation with the ability for the applicant to seek compensation directly from the hospital, the ECtHR noted that - even if the domestic case law is developing - the domestic courts have not consistently established the liability of hospitals in cases of medical negligence.Therefore "[t]he 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". Lastly, the Court found that in the present case that the applicant did not remain passive, nor was her sole goal to have the doctor criminally punished, as a consequence it would be disproportionate to require her to lodge yet another action with the civil courts.

The Court thereafter conclude that by not involving the applicant in the decision-making process regarding her medical treatment and by not informing her properly of the risks involved in the intervention, the applicant suffered an infringement of her right to private life. The system in place made it impossible for her to obtain redress for the infringement of her right, therefore the respondent State has failed to comply with its positive obligations under Article 8 of the Convention.