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Portugal: Botched surgery victim wins court backing in “gender and ageism” human rights complaint

A woman left incontinent, in intense pain and with an impaired sex life after a gynaecological operation, has won the support of human rights judges in her complaint against Portugal.

The Strasbourg court has ruled that a decision to reduce the compensation awarded to a 50-year-old Maria Ivone Carvalho Pinto de Sousa Morais for the medical error was discriminatory.

According to the court, the decision “had been based on the general assumption that sexuality was not as important for a 50-year-old woman and mother of two children as for someone of a younger age.

“In the court’s view, those considerations showed the prejudices prevailing in the judiciary in Portugal.”

In its 25 July judgement in the case of Carvalho Pinto de Sousa Morais v. Portugal (application no. 17484/15) the European Court of Human Rights held, by five votes to two, that there had been:

a violation of Article 14 (prohibition of discrimination) read together with Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

As just satisfaction (Article 41), the court held, by five votes to two, that Portugal was to pay the applicant 3,250 euros (EUR) in respect of non-pecuniary damage and EUR 2,460 for costs and expenses.

The applicant, Maria Ivone Carvalho Pinto de Sousa Morais, who lives in Bobadela (Portugal), suffered from a gynaecological disease and had surgery in May 1995.

The operation left her in intense pain and led to a loss of sensation in the vagina, incontinence, difficulty walking and sitting and having sexual relations.

The applicant found out that a pudendal nerve had been injured during the operation and brought a civil action against the hospital for damages.

At first-instance she was awarded 80,000 euros (EUR) for the physical and mental suffering caused by the medical error and EUR 16,000 for the services of a maid to help with household tasks.

However, on appeal, the Supreme Administrative Court, although confirming the findings of the first-instance court, found those awards excessive and reduced them to EUR 50,000 and EUR 6,000, respectively.

It found in particular that her pain had been aggravated during the surgery, but that it was not new and had not resulted exclusively from the injury to the nerve; and that, in any case, she was already 50 years old at the time of the surgery and the mother of two children, an age when sexuality was not as important.

It further found that she was unlikely to be in need of a full time maid at the time as, considering the age of her children, she only needed to take care of her husband.

In her complaint to the European court, the applicant alleged in particular that the decision to reduce the amount of compensation was discriminatory because it had disregarded the importance of a sex life for her as a woman.

The court found in particular that the applicant’s age and sex had apparently been decisive factors in the national courts’ final decision not only to lower the compensation awarded for physical and mental suffering but also for the services of a maid. The decision had moreover been based on the general assumption that sexuality was not as important for a 50-year-old woman and mother of two children as for someone of a younger age.

In the court’s view, those considerations showed the prejudices prevailing in the judiciary in Portugal.

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