Last Updated on April 28, 2019 by LawEuro
Communicated on 3 April 2019
FIFTH SECTION
Application no. 63126/13
Valentina Davydovna TRETYAKOVA against Ukraine
and 6 other applications
(see list appended)
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
The summary of the facts, as submitted by the applicants, is provided below with reference to each application.
A. Application no. 63126/13, Tretyakova v. Ukraine
On 22 May 2003 doctor K. examined the applicant’s mother at home and gave her an injection, following which the patient’s condition seriously deteriorated. The applicant’s mother was admitted to hospital where she was provided with intensive care treatment. On 25 May 2003, at the request of the applicant, her mother was discharged from hospital. On 26 May 2003 she died. No autopsy was performed before the body was buried.
In June 2003 the chief doctor of the hospital reprimanded doctor K. for the inappropriate medical treatment of the applicant’s mother.
Between June 2003 and December 2008, following the applicant’s complaints, the local prosecutor’s office held several pre-investigative inquiries resulting in decisions that there had been no grounds to open criminal proceedings for the alleged medical negligence. Those decisions were quashed as unfounded by the supervising authorities and further inquiries were ordered.
On 24 December 2008 a full-scale investigation was opened. On 1 November 2012 the investigator terminated criminal proceedings because of the absence of the constituent elements of a criminal offence. The investigator, relying on three forensic medical examinations and other evidence, found that the administration of an injection had been a wrong decision but it could not be established whether there had been a direct link between the injection and the death of the patient. Notably, it was too late to exhume the body to examine the question of a causal link.
The applicant challenged this decision before the domestic court, arguing that there had been sufficient proof of a medical error, that she had not made any written request for the discharge of her mother from the hospital, that no autopsy had been carried out to establish the cause of death and that medical records regarding the treatment of her mother had been forged. On 19 February 2013 the Kerch Town Court of the Crimea rejected the applicant’s complaint stating that, in the absence of autopsy, there had been no evidence to substantiate the link between the medical error and the death and that it had been too late to carry out an exhumation. The town court specified that the applicant could appeal against the decision by submitting an appeal through them. Subsequently, the town court refused to accept the applicant’s appeal, noting that she should have sent the appeal directly to the court of appeal. On 5 March 2013 the court of appeal rejected the applicant’s appeal as being out of time, finding that the applicant had missed the deadline for no valid reason. On 31 May 2013 the Higher Specialised Court on Civil and Criminal Matters dismissed the applicant’s cassation appeal against the appellate court’s decision of 5 March 2013.
B. Application no. 31064/16, Garkusha v. Ukraine
Between August 2008 and June 2010 the applicant’s son repeatedly attended Voznesensky District hospital complaining about stomach ache. He was prescribed anti-gastritis treatment. In June 2010 he was diagnosed with advanced stomach cancer (stage IV).
On 4 August 2010 the applicant complained to Voznesenskyy District Prosecutor’s Office about medical negligence by the doctors of the local hospital.
On 17 August 2010 the commission at the local hospital found shortcomings in the treatment of the applicant’s son, the reasons for errors being the latent nature of the illness and insufficient medical assessments of the patient. As a penalty for the shortcomings, the commission reduced the salary of the doctor who treated him.
On 29 August 2010 the applicant’s son died. No autopsy was carried out.
On 2 June 2011 forensic medical experts found that there had been shortcomings in the medical treatment and assessment of the applicant’s son; however, given that no autopsy had been carried out, it had not been possible to determine whether or not there had been a direct causal link between medical negligence and the patient’s death.
Between June and November 2011 the police, having conducted pre‑investigation inquiries, took four decisions finding that no causal link could be established between the death of the applicant’s son and the alleged medical errors.
On 19 March 2012 the applicant’s family instituted civil proceedings against the hospital seeking damages. They claimed that the medical negligence by the hospital staff contributed to serious illness and the death of their family member. Expert examinations were ordered to establish the causes of the applicant’s son death. On 24 December 2014 the Voznesenskyy District Court allowed the claim. However, on 20 August 2015 the Mykolayiv Regional Court of Appeal quashed that judgment and dismissed the claim. The appellate court found that there had been no causal link between the shortcomings in the medical treatment of the applicant’s son and his death. The court referred to the expert opinions to this effect. The applicant’s family appealed on points of law, arguing that the appellate court selectively referred to certain parts of the expert opinions without examining all the medical evidence as a whole; they further argued that they had claimed non-pecuniary damage not only owing to the death of their family member but also because of the prolonged period of wrong medical treatment. On 29 October 2015 the Higher Specialised Court on Civil and Criminal Matters dismissed the applicant’s cassation appeal against the appellate court’s decision.
C. Application no. 55046/16, Petkanych and Others v. Ukraine
On 19 July 2005 Ms P., a member of the applicants’ family, was admitted to an infectious diseases hospital in Zakarpattya Region with symptoms of acute respiratory viral infection and intoxication syndrome. She was diagnosed with the combined disorder of pleurisy and pneumonia and provided with treatment in relation to that illness. As the treatment did not help the patient, on 26 July 2005 she was transferred to Uzhhorod city hospital where the doctors suspected that the patient in reality had suffered from another illness, notably meningitis, and changed the medical treatment accordingly. On 10 August 2005 Ms P. had developed severe haemorrhagic meningoencephalitis resulting in coma and death.
On 19 September 2005 a criminal investigation was launched. On 3 February 2006 the forensic medical experts found that there had been serious shortcomings in the medical assessment and treatment of Ms P. In the additional opinion of 2 August 2007 medical experts noted that Ms P. had been examined by numerous medical practitioners and that it had been impossible to identify a specific doctor who had made a mistake.
On 2 April 2008 Dr T. was charged with the offence of medical negligence. The applicants lodged civil claims within the criminal proceedings. On 3 December 2012 the Uzhhorod City Court acquitted Dr T. however, that judgment was quashed by the Zakarpattya Court of Appeal as unsubstantiated, notably because the evidence had not been properly examined. On 19 June 2015 the trial court ordered an additional forensic medical examination in the case.
D. Applications nos.: 56745/16, Kapustin v. Ukraine; 60191/16, Zhukov v. Ukraine; 60194/16, Zhukova v. Ukraine; 35272/17, Zhukov v. Ukraine
Ms K., who was the applicants’ family member, died on 31 December 2008 in a hospital, after giving birth. The applicants complained to the local prosecutor’s office that Ms K. died owing to negligence on the part of the medical staff.
1. Criminal and disciplinary proceedings
On 1 January, 23 April, 16 July, 27 August and 3 October 2009 the Tsentralnyy District Police Office of Mykolayiv city, having conducted pre‑investigative inquiries, decided not to open a criminal investigation because of the absence of the constituent elements of a criminal offence. Those decisions were quashed as unfounded and further inquiries were ordered. On 13 November 2009 the Mykolayiv Regional Prosecutor’s Office informed one of the applicants that disciplinary proceedings had been initiated against the investigator for delays and shortcomings in dealing with the case.
In April and May 2009, during the course of disciplinary proceedings carried out by healthcare authorities, the chief doctor, other doctors of the hospital and ambulance medics were reprimanded for various shortcomings in Ms K.’s treatment.
On 24 December 2009 a criminal case on alleged medical negligence was opened. An expert examination was ordered. The applicants introduced civil claims within the criminal proceedings. On 29 April 2015 the Central Investigation Department of Internal Affairs informed one of the applicants that the instructions had been given to the relevant investigation unit to intensify criminal proceedings in the case.
On 22 January and 20 February 2016 the Tsentralnyy District Court of Mykolayiv terminated the proceedings after finding that charges against three doctors of the hospital and against the chief doctor had been time‑barred. The applicants’ civil claims were left without consideration on the merits. Those decisions were upheld by the Mykolayiv Regional Court of Appeal on 14 March and 6 April 2016. On 15 July 2016 the Higher Specialised Court on Civil and Criminal Matters (HSCU) returned, without examination, the cassation appeal lodged by one of the applicants (Mr Zhukov) in the case concerning three doctors. On 27 December 2016 the HSCU dismissed the three applicants’ cassation appeals in relation to the charges dropped against the chief doctor.
2. Civil proceedings
On 11 April 2016 and 1 June 2016 two applicants, Mr Zhukov and Ms Zhukova, respectively, instituted civil proceedings against doctors and the hospital. Those applicants claimed damages for the medical negligence which had resulted in the death of their daughter, Ms K. On 22 December 2016 the claims were joined in a single set of proceedings.
On 16 January 2017 the Tsentralnyy District Court of Mykolayiv, relying on the evidence obtained in the course of criminal investigations, found that the doctors had failed to provide appropriate treatment of Ms K and ordered the hospital to pay damages to both applicants. Each of them was awarded 200,000 Ukrainian hryvnia (UAH) (about 6,800 euros (EUR)) in respect of non-pecuniary damage; in addition, Ms Zhukova was awarded UAH 14,430.70 (about EUR 490) in respect of pecuniary damage. The court specified that the hospital had a right of recourse to recover from the doctors the damages that would be paid to the applicants.
On 28 March 2017 the Mykolayiv Court of Appeal reduced the award in respect of non-pecuniary damage to UAH 100,000 for each applicant. On 28 November 2018 the Supreme Court quashed the decision of the appellate court and upheld the decision of the first-instance court of 16 January 2017.
COMPLAINTS
Relying on various provisions of the Convention, including Article 2, the applicants complain that the authorities failed to establish the circumstances in which their relatives died and to provide the applicants with effective remedies in respect of alleged medical negligence or malpractice.
COMMON QUESTION:
Have the domestic authorities complied with their procedural obligations under Article 2 of the Convention?
CASE SPECIFIC QUESTION:
Additional question in applications:
63126/13, Tretyakova v. Ukraine
55046/16, Petkanych and Others v. Ukraine,
56745/16,Kapustin v. Ukraine,
60191/16, Zhukov v. Ukraine,
60194/16,Zhukova v. Ukraine,
35272/17,Zhukov v. Ukraine:
Have all the applicants exhausted domestic remedies in respect of their allegations under the Convention?
The Government are invited to provide the following material:
– Garkusha v. Ukraine (no. 31064/16): all expert opinions examined by the domestic courts in this case;
– Petkanych and Others v. Ukraine (no. 55046/16): decisions taken by the authorities in relation to the applicants’ allegations of inappropriate medical treatment, including decisions on their civil claims;
– Kapustin v. Ukraine (no. 56745/16), Zhukov v. Ukraine (no. 60191/16), Zhukova v. Ukraine (no. 60194/16), Zhukov v. Ukraine (no. 35272/17): decisions taken by the authorities in relation to the applicants’ allegations of inappropriate medical treatment, including decisions on their civil claims (in criminal and civil proceedings).
APPENDIX
| No. | Application no. | Lodged on | Applicant
Date of birth Place of residence |
| 1 | 63126/13 | 21/09/2013 | Valentina Davydovna TRETYAKOVA
16/07/1940 Kerch |
| 2 | 31064/16 | 16/05/2016 | Ivan Ivanovych GARKUSHA
22/12/1951 Doroshivka |
| 3 | 55046/16 | 07/09/2016 | Fedir Fedorovych PETKANYCH
12/08/1980 Uzhgorod
Mykhaylo Mykhaylovych LAVRIV 19/11/1952 Uzhgorod
Zhanna Fedorivna PETKANYCH 02/01/2005 Uzhgorod
Mariya Vasylivna PETKANYCH 30/10/1959 Uzhgorod
Yaroslav Fedorovych PETKANYCH 30/12/1981 Uzhgorod |
| 4 | 56745/16 | 18/09/2016 | Oleksandr Ivanovych KAPUSTIN
06/03/1978 Mykolayiv |
| 5 | 60191/16 | 17/09/2016 | Valeriy Anatoliyovych ZHUKOV
22/04/1958 Torun |
| 6 | 60194/16 | 30/09/2016 | Olga Yevgeniyivna ZHUKOVA
19/06/1958 Mykolayiv |
| 7 | 35272/17 | 03/05/2017 | Valeriy Anatoliyovych ZHUKOV
22/04/1958 Torun |
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