Ioniță v. Romania (application no. 81270/12)
a violation of Article 2 (right to life) of the European Convention on Human Rights and 12,000 euros in respect of non-pecuniary damage because of non-investigation of the death

Principal facts
The applicants, Dorina Ioniță and Viorel Ioniță, are Romanian nationals who were born in 1972 and 1976 respectively and live in Brăila (Romania).
In November 2005, the applicants’ four-year-old son underwent surgery for the removal of a polyps in the State-run Brăila Emergency Hospital. The surgery was carried out by Dr C.B., and the general anaesthesia was performed by Dr P.A., who was assisted by a staff nurse, P.V.I. After surgery the child was immediately transferred to the intensive care unit, under the supervision of P.V.I. The child suffered a haemorrhage, causing blood to flood his lungs. Attempts to resuscitate him failed, and the boy was declared dead.

Conflicting accounts emerged of what had caused his death, according to an autopsy, statements by the medical professionals present at the time, and various forensic reports. The autopsy report, approved by the Iaşi Forensic Institute and the Mina Minovici Forensic Institute, concluded that there had been a link between the post-operative treatment and the child’s death. Notably, the deflation of the balloon of the catheter, applied after the operation to prevent the transfer of blood into the lungs, was identified as a possible cause of the presence of blood in the child’s airways. Conversely, a medical report submitted by Dr P.A. stated that the cause of death had not been the presence of blood in the lungs, but had instead been the post-operative reaction of the child, arising from his pre-existing medical conditions.

Disciplinary proceedings were instigated in relation to the incident. These were concluded in a decision by the superior disciplinary committee of the National College of Doctors made in June 2008. The committee found that the pre-surgical tests carried out by Dr C.B. and Dr P.A. had been insufficient, and fined them both 1,000 Romanian lei. The committee also found that the statements made by the medical professionals must have been inaccurate.
A criminal investigation was also opened, which the applicants joined as civil parties. The prosecutor’s office of the Brăila District Court decided to institute criminal proceedings against Dr P.A. In order to resolve some of the inconsistencies in the medical reports, the investigating authorities made requests for a new forensic report, which would address the differing accounts and respond to observations from the parties. However, requests for a new report were rejected: in particular by the Mina Minovici National Forensic Institute, on the basis that the Institute had already given its opinion on the case.

In autumn 2008 the prosecuting authorities issued decisions to discontinue the proceedings against Dr P.A., on the grounds that there had been no evidence of criminal negligence in his conduct. Following a complaint lodged by the applicants, this decision was quashed by the Brăila District Court in February 2009. The court then conducted its own examination of the evidence in several hearings: in October 2010 it acquitted Dr P.A. and dismissed the applicants’ civil claim. However, this decision was eventually overturned by the Galaţi Court of Appeal, which sent the file back to the first instance court. Nevertheless, in December 2011 the District Court once again acquitted Dr P.A. and dismissed the civil claim. The court held that it could not establish beyond reasonable doubt that Dr P.A. had been negligent in ensuring the tightness of the catheter’s balloon after surgery. Moreover, it found that no causal link existed between the death of the child and the alleged omission of the medical authorities to obtain the applicants’ informed consent for the operation. The court also dismissed the applicants’ request to extend the criminal investigation to the nurse, P.V.I. The judgment was upheld by the Galaţi Court of Appeal on 22 May 2012.

The applicants had also lodged a separate set of civil proceedings in relation to the incident. These had been stayed between 2009 and 2013 pending a final decision in the criminal proceedings. However, after the stay was lifted the applicants gave up the claim.

Complaints, procedure and composition of the Court

Relying in substance on Article 2 (right to life), the applicants complained that the criminal investigation into the death of their son had been ineffective and had exceeded a reasonable time. In particular, they complained that the authorities had failed to investigate Dr C.B. or nurse P.V.I.; whilst their investigation of Dr P.A. had been insufficient, as it had failed to properly take into account the reports which had criticised his conduct.
The application was lodged with the European Court of Human Rights on 13 December 2012.

Decision of the Court

Article 2 (right to life)
The Court found that there had been a violation of the procedural aspect of Article 2, because there had not been an effective investigation into the death of the applicants’ son. In particular, the Court highlighted the following shortcomings with the proceedings.
First, only an additional scientific report on the circumstances of the death could have resolved the inconsistencies in earlier reports, and provided proper assistance to the judicial authorities assessing the case. However, none was provided (on the grounds that the law did not allow for a new report to be commissioned). As the Court has noted before, the very existence of Romanian legislation authorising medical authorities to ignore requests by the judiciary is incompatible with the right to life.
Second, the authorities had never established whether the nurse P.V.I. had properly carried out her duties. One of the main hypotheses for the presence of blood in the lungs had been the deflation of the balloon of the catheter, which had been under the surveillance of Dr P.A. or nurse P.V.I. However, the prosecuting authorities had dismissed the applicants’ requests to extend the criminal proceedings to the nurse, and took no special measures to require her to testify about her role.
Third, the domestic courts had found no medical negligence in the doctors’ actions: despite the fact that Romanian legislation required doctors to obtain the informed consent of a patient prior to undertaking a risky procedure; and the disciplinary committees had found that both the surgeon and the anaesthetist had failed to obtain the applicants’ informed written consent for the operation on their son.
Finally, the proceedings had taken an unjustifiably long amount of time, given that six and a half years had elapsed between the death of the applicants’ son (in November 2005) and the final decision in the case (taken in May 2012).

Just satisfaction (Article 41)
The Court held that Romania was to pay the applicant 12,000 euros in respect of non-pecuniary damage.

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