Communicated on 3 April 2019<\/p>\n
FOURTH SECTION<\/p>\n
Applications nos. 51282\/18 and 51515\/18
\nBranka BIJELI\u010c against Slovenia
\nand Anto BIJELI\u010c against Slovenia
\nboth lodged on 26 October 2018<\/p>\n
STATEMENT OF FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicants, Ms Branka Bijeli\u010d and Mr Anto Bijeli\u010d, are Slovenian nationals who were born in 1958 and 1950 respectively and live in Logatec. They are represented before the Court by Mr D. Sluga, a lawyer practising in Ljubljana.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 2.\u00a0\u00a0The facts of the case, as submitted by the applicants, may be summarised as follows.<\/p>\n 3.\u00a0\u00a0On 16 April 2004 the applicants\u2019 son X died as a result of a malignant melanoma.<\/p>\n 4.\u00a0\u00a0On 16 April 2007 the applicants lodged a claim for damages against the L. Health Care Centre with the Ljubljana District Court. They contended that Dr D., the Centre\u2019s employee who had examined their son, had been negligent (had delayed his treatment) and sought compensation amounting to 20,000 euros (EUR) each in respect of non-pecuniary damage arising from his death.<\/p>\n 5.\u00a0\u00a0On 3 October 2013 the court dismissed the applicants\u2019 action. It found it established that X had shown a suspicious mole to Dr D. on 19 April 2002 and that it was highly likely that the melanoma had already metastasised at that point. Further, it held that, assuming that the signs of a malignant melanoma had been apparent at the time of Dr D.\u2019s examination, the doctor had not acted negligently by not referring X for testing under an emergency procedure. Finally, the court held that the causal link had in any event been broken because removal of the mole on 19 April 2002 (and not a month and a half later) would not have significantly changed the course of the disease or X\u2019s chances of survival.<\/p>\n 6.\u00a0\u00a0Following the applicants\u2019 appeal, the L. Higher Court reversed the judgment and granted their claim on the merits (without determining the amount of compensation). It concluded that the referral (napotnica) Dr\u00a0D.\u00a0had issued in X\u2019s case had not been prepared in accordance with medical doctrine and practice. Moreover, Dr D. had failed to seek an informed consent. In light of this, it considered that Dr D. had committed a medical error. As regards the question of causal link, the court elaborated on the importance of quick medical response in cases of patients with detected malignant melanoma. It held that the applicants had established that X\u2019s chances of survival would have been higher had Dr D. referred him for further testing under an emergency procedure. The burden of proof that X\u00a0would have died even if the referral had been issued in compliance with the relevant rules had thereby shifted on the defendant party who had failed to prove this with a required level of conviction.<\/p>\n 7.\u00a0\u00a0When deciding the appeal on points of law, lodged by the defendant party against the higher court\u2019s judgment, the Supreme Court reversed the impugned judgment and withheld the first-instance court\u2019s judgment. It held that the doctor\u2019s actions would be considered a legally relevant cause of X\u2019s death only if she could and should have prevented it. In this connection, the court observed that the role of the plaintiffs in cases of this nature was to argue (and prove) that the actions the doctor had omitted to take could cure (prevent death of) a significant (considerable) number of patients. On the basis of facts established by the lower courts that:<\/p>\n –\u00a0\u00a0the melanoma had highly likely fatally metastasised before Dr\u00a0D.\u00a0had seen it on 19 April 2002;<\/p>\n –\u00a0\u00a0the chances of survival in that case had been estimated at 5%; and<\/p>\n –\u00a0\u00a0the removal of such an aggressive tumour at that moment would not have significantly changed the course of the disease and the success rate of the treatment,<\/p>\n it concluded that the applicants\u2019 son\u2019s death could not have been realistically prevented even if Dr D. had acted differently and that the doctor\u2019s omission at issue could therefore not be considered a legally relevant cause of his death.<\/p>\n 8.\u00a0\u00a0On 4 June 2018 the Constitutional Court refused to accept a constitutional complaint lodged by the applicants for consideration.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 9.\u00a0\u00a0A summary of relevant domestic law provisions from the Code of Obligations is contained in \u0160ilih v. Slovenia [GC], no. 71463\/01, \u00a7 95, 9\u00a0April 2009.<\/p>\n COMPLAINTS<\/strong><\/p>\n The applicants complain that the Supreme Court\u2019s view on the absence of causal link between the doctor\u2019s error and their son\u2019s death (based on the premise that the treatment was irrelevant when the chance of the patient\u2019s survival was statistically insignificant), as well as the related standard and burden of proof the applicants were bound to carry, did not give sufficient regard to their son\u2019s right to life. The applicants also complain about the length (more than eleven years in total) of the civil proceedings. They rely on Article 2 and Article 6 \u00a7 1 of the Convention.<\/p>\n QUESTIONS TO THE PARTIES<\/strong><\/p>\n 1.\u00a0\u00a0Has the respondent State complied with its obligations under Article 2 of the Convention? In particular, have the domestic authorities dealt with the applicants\u2019 case of alleged medical negligence concerning their son\u2019s death in a manner compatible with the procedural requirements of this Article, including the requirement that the proceedings be completed within a reasonable time (see \u0160ilih v. Slovenia [GC], no. 71463\/01, \u00a7\u00a7 195 and 196, 9 April 2009; Lopes de Sousa Fernandes v. Portugal [GC], no. 56080\/13, \u00a7\u00a7 214-221, 19 December 2017; and Fernandes de Oliveira v. Portugal [GC], no. 78103\/14, \u00a7\u00a7 81 and 137, 29 January 2019)?<\/p>\n Has the Supreme Court\u2019s view on the absence of causal link between the doctor\u2019s error and their son\u2019s death, as well as the related standard and burden of proof the applicants were bound to carry, had sufficient regard to the applicants\u2019 son\u2019s right to life?<\/p>\n 2.\u00a0\u00a0Was the length of the civil proceedings in the present case in breach of the \u201creasonable time\u201d requirement of Article\u00a06 \u00a7\u00a01 of the Convention?<\/p>\n 3.\u00a0\u00a0The Government are requested to submit copies of all expert reports submitted in the domestic proceedings.<\/p>\n