A mother has triumphed in her human rights challenge against Georgia, following the ‘medical negligence’ death of her son.
European court judges today published their ruling in the case Sarishvili-Bolkvadze v. Georgia (application no. 58240/08), deciding that Georgia’s failure to apply rules on health services led to the rights violation of the mother.
The court made no award as the applicant Gulnara Sarishvili-Bolkvadze had not submitted a claim for one. It observed that domestic law allowed for requests for the re-opening of civil proceedings which had been found to be in violation of the convention.
In its Chamber judgment, the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 2 (right to life) of the European Convention on Human Rights because of the authorities’ failure to provide an effectively functioning regulatory framework, and
a violation of Article 2 because of shortcomings in the civil proceedings for compensation.
Sarishvili-Bolkvadze brought the case to the court, complaining that the authorities had failed in their duty to protect her son’s life from medical negligence and the adequacy of their response to his death.
The applicant’s son, G.B., was injured after falling from a crane in February 2004. He was taken to a hospital intensive care unit with a fractured skull and brain damage and was also later treated for bleeding in the stomach.
In March, he was transferred to a general ward, however, he suffered bleeding from a duodenal ulcer and was given emergency surgery.
He died on 14 March 2004.
The authorities opened a criminal investigation and in June 2004 a panel of experts stated that there had been a medical error in his treatment. The criminal case was closed in August 2004 without result, re-opened in 2006 and then closed again in 2008.
The applicant refused all along to allow G.B.’s body to be exhumed for examination. Relying on the experts’ findings on the necessity of that measure, prosecutors said they could not find proof of a causal link between the medical error and the death.
In the meantime, the hospital dismissed the neurosurgeon responsible for G.B.’s treatment and reprimanded two intensive care specialists and a surgeon.
In its judgement today, the court noted that some of the doctors who had cared for the applicant’s son had not had proper licences and that the hospital itself had been carrying out various medical activities without the necessary permits.
That showed failings in Georgia’s implementation of its regulatory framework for ensuring patient safety, meaning it had failed to live up to its duties under the convention.
While the court found that the criminal investigation in the case was in line with convention requirements, it ruled that the civil proceedings were not.
Domestic law had prevented the applicant from being awarded compensation for non-pecuniary damage as next-of-kin, which meant there had been a further violation of her rights.