Sevim GUNGOR v Turkey - 75173/01 [2009] ECHR 767 (14 April 2009)

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The European Court of Human Rights (Second Section), sitting on 14 April 2009 as a Chamber composed of:

Ireneu Cabral Barreto, President,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria,
Işıl Karakaş, judges,
and Françoise Elens-Passos, Deputy Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Ms Sevim Güngör, is a Turkish national who was born in 1942 and lives in Ankara. The Turkish Government (“the Government”) were represented by their Agent.

The facts of the case, as submitted by the parties, may be summarised as follows.

In 1995 the applicant’s mother, Pakize Güngör, was diagnosed as suffering from aortic insufficiency and hypertension.

On 31 December 1997 the applicant’s mother was admitted to the emergency ward of the gastroenterology department of İbni Sina Hospital at the Medical Faculty of Ankara University (“the hospital”). She was suffering from acute malnutrition and decubitus ulcers (bed sores) on her back.

The applicant was pre-diagnosed as suffering from malnutrition and possible digitalis intoxication^¹. The gastroenterology department requested an immediate consultation with the cardiology department. On the same night, the applicant’s mother was examined by a doctor at the cardiology department, who noted, among other things, that she looked extremely weak and emaciated and that it was impossible to take a medical history.

On 8 January 1998, upon Dr I.Ç.’s request, the applicant’s mother was examined by a doctor^² at the plastic-surgery department, who noted, among other things, that decubitus ulcers around her abdomen looked infected. A debridement^³ was programmed for the next day.

Between 10 and 14 January 1998 the applicant’s mother was administered a drug called Maksiporin^⁴ twice a day, among other medicines, in order to disinfect her ulcers.

On 15 January 1998, at around 10 p.m., the applicant’s mother was administered Tienam 500, a beta-lactamase antibiotic. On the same night, the applicant’s mother died. She was 80 years old.

On 15 January 1998 the applicant filed a complaint with the Ankara public prosecutor’s office against the nurse, Ms Z.Ç., who had administered the injection.

On 16 January 1998 an autopsy was carried out on the applicant’s mother by the Ankara Forensic Medicine Institute upon the request of the Ankara public prosecutor. According to the autopsy report drawn up on 20 February 1998, the cause of death was attributed to respiratory and circulatory insufficiency as a result of bronchopneumonia (infection of the lung by bacteria, virus or fungus). The report concluded that the death of the applicant’s mother could not be attributed to the medical treatment she had received at the hospital.

On 3 March 1998 the Ankara public prosecutor, relying on the conclusions of the autopsy report, decided not to initiate criminal proceedings against the nurse.

On an unspecified date the applicant filed a complaint with the Ankara public prosecutor’s office against two doctors working at the hospital, namely Dr R.Ö. and Dr M.K.

On 23 June 1998 Dr H.E. of the urology department at Ankara Municipal Hospital drafted a report stating that the applicant’s mother, who had been treated by him on 24 May 1996, was allergic to penicillin and to beta lactamase inhibitors.

On 31 July 1998 the Ankara public prosecutor considered that he lacked jurisdiction ratione personae to examine the complaints against the doctors and transferred the case file to the Chancellor of Ankara University, pursuant to Law no. 2547.

On 14 August 1998 the Legal Department of Ankara University requested the Dean of the Faculty of Medicine to conduct a disciplinary and criminal investigation into the applicant’s allegations against Dr R.Ö. and Dr M.K. and to submit the investigation file, together with a report prepared on the subject.

On an unspecified date, three professors from the Faculty of Medicine (hereinafter “the Medical Commission”) were appointed by the Dean of the Faculty of Medicine to conduct the disciplinary and criminal investigation into the applicant’s allegations. The Government informed the Court that these academics were from the Department of General Surgery, the Department of Plastic and Reconstructive Surgery and the Department of Otorhinology and Head and Neck Surgery respectively.

The medical records of the applicant’s mother and the autopsy report were submitted to the Medical Commission in September 1998. On 1, 9 and 16 September 1998 one of the Commission members interviewed Dr M.K., Dr R.Ö., Dr I.Ç. and nurse Z.Ç.

“... the patient was in pain and unresponsive, had severe lung and circulatory insufficiency, severe and widespread decubitus ulcers and was in sepsis^¹ ... that night, at around 2 a.m., the nurse on duty, Ms Z.Ç., came to my office and informed me that the patient had probably died. I immediately went to the patient’s room. When I entered the room I saw that the patient’s pupils were bilaterally fixed and dilated. [Her] respiration had ceased and her heart monitor showed a flat line. As you know there is no indication to attempt resuscitation on a patient who has suffered multiple organ failure, brain death and cardiac asystole. Therefore there was no attempt to resuscitate the patient. The patient’s relative’s allegations ... are not true. It is against universal ethical considerations to reprimand a near-death patient’s relative. I do not accept the accusations against me.”

“... after Dr I.C. performed the first medical interventions I took over responsibility for the patient. I changed the dressings twice a day. Later on I performed, after consulting with Dr I.C., a debridement on the region which was infected. Since the procedure is done on dead tissue it is impossible for the patient to shout out in pain ... I took a sample from the infected wound. ... Dr I.Ç. told me that the micro-organisms on the wound were susceptible to [the drug] imipenem and asked if it would be acceptable to me if they administered it. I told them that if the patient’s clinical condition permitted, they could use it. Contrary to the allegations, I did not give either direct or indirect orders for the administration of imipenem since I was not the doctor primarily responsible for the deceased ...”

“The patient was admitted to the intensive care unit on 31 December 1997 .... The patient’s general condition was extremely bad. She was unconscious, dehydrated ... She was fitted with a urine catheter to relieve her bladder ... We consulted with the cardiology department ... The patient had decubitus ulcers covered with necrotic material. We consulted with the plastic-surgery department. Dr R.Ö. examined the patient. A debridement was performed on the ulcers and a sample was taken for examination. The patient was treated with cephalosporin-type antibiotics. In the following days, according to the results of the samples, the wound was susceptible to imipenem. Accordingly, on the recommendation of Dr R.Ö., the treatment with cephalosporin-type antibiotics was stopped and the patient was treated with Tienam 500... Nothing was said between the patient’s daughter and me concerning the patient’s allergy to penicillin and beta-lactamase inhibitors. I believe that the patient died because her general health was terrible and she was at the terminal stage, rather than from an allergy.”

“... I periodically monitored the patient until her death on 15 January 1998. During this time there was no significant improvement in her health. I was on duty the night she died. Dr M.K. was the doctor on duty. At 5 p.m. Dr I.Ç. ordered the infusion of Tienam-500 to the patient. I complied with this order at 10 p.m. I did not see any negative changes in the patient’s general state when I entered the room later on to check on the patient’s blood pressure. At around 3.30 to 4 a.m., I saw [the applicant] leaving the patient’s room and entering Dr M.K.’s room. They both entered the patient’s room. When I tried to enter the room [the applicant] shouted that I had killed the patient with the injection. Dr M.K. tried to calm [the applicant] down. Despite our efforts she did not let us take the deceased out of the room until 5.30 a.m. ... I did not see any negative reaction towards [the applicant] and the patient on the part of Dr M.K. ... I did not see or receive any order from Dr R.Ö. ...”

On 2 October 1998 the applicant submitted another complaint to the Chancellor of Ankara University, alleging that Dr A.G. was also responsible for the death of her mother. She claimed that Dr A.G. was responsible for the infection of her mother’s ulcers and for ordering the administration of Tienam-500.

On 9 November 1998 the Medical Commission interviewed the applicant, the accused doctors and witnesses.

“I called the gastroenterology clinic and they recommended Dr A.G. I called him, told him that the doctor who treated my mother at home had recommended nasogastric intubation^¹ and asked him what reference number I needed to buy. He told me that if I brought in my mother they would insert the tube and treat her ... I believe that the patient was administered medicines that she was allergic to during her treatment. My mother was allergic to beta-lactamase and penicillin-type antibiotics. I did not say this before because I was not asked. I was not in the patient’s room during the treatment. A plastic surgeon outside (whose name I cannot remember at the moment – his first name was probably Mehmet) told me that the decubitus ulcers on her back were not infected and that they would heal with bandages. I think that they became infected after the debridement. If they had not given [the] patient antibiotics for the infection, she would not have died within fifteen minutes after the injection. The night my mother died, I told Dr M.K. that my mother was not well. However, he refused to intervene and told me off. Dr E.D. is a witness to this action. When Dr M.K. returned from my mother’s room he told me that my mother had died. The wound had been bandaged by Dr R.Ö.”

“I do not want a lawyer. The deceased’s daughter called me and said that her mother was very ill and asked me to help her. ... I told her to urgently bring her mother to the hospital. When the patient arrived on a stretcher, she was unconscious, extremely dehydrated and weak. Her stomach was swollen and she had widespread decubitus ulcers. She was taken into intensive care. The patient was treated with all the necessary treatments available in modern science by our team (gastroenterology, cardiology, neurology and plastic surgery). When the patient arrived, she was near death. Despite our swift and continuous treatment her general condition did not change. Unfortunately, the predestined end prevailed.”

“Prof. Dr A.G asked me to see the patient and I saw the patient the very same day. The patient’s general heath was very bad. She had infected wounds in the lower back. The wounds were in a bad condition. I ordered a debridement, which was performed by Dr R.Ö. Afterwards I examined the patient four times. It was the plastic-surgery department which monitored the state of the wounds. It was recommended that the gastroenterology department should administer antibiotics to the patient. We made every effort to cure the patient. We are also sad at the outcome; however, there is no cure for death. The patient had not been taken good care of for weeks (thin, malnutrition, barely conscious).”

“The deceased and her daughter are relatives of my wife. I have not seen the deceased for over fifteen years. In any event, I only saw her twice in my life. I learned of her death when her daughter came to visit us in Yalova, a long time after her death. I did not see the deceased during her illness. I do not know what kind of treatment was given to her in the hospital. I have no other knowledge apart from what her daughter told me. She told me that her mother had not been treated well in the hospital and that she had died as a result of the injections administered to her despite her allergy to antibiotics. I didn’t believe the things she said. I have nothing else to say.”

The Commission also interviewed Dr M.K., Dr R.Ö, Dr I.Ç. and nurse Z.Ç. They relied on their previous submissions.

On 4 December 1998 the Medical Commission drafted a report (fezleke) in which they concluded that no fault was attributable to the doctors regarding the death of the applicant’s mother. They therefore recommended that there was no need to initiate criminal proceedings against them and that the accused doctors should not be the subject of any disciplinary sanction. In the report, the commission found, inter alia, that the debridement procedure on the patient was medically correct, and that there was nothing to indicate that the patient had shown an allergic reaction to the drugs administered or that the accused had been negligent or administered faulty treatment. It considered Dr H.E.’s indication regarding the patient’s allergy to be insufficient on the ground that there was no information on the basis of which this statement had been made.

On 18 December 1998 the board of directors of the Faculty of Medicine unanimously adopted the conclusions of the Medical Commission.

On 31 December 1998 the Dean of the Faculty of Medicine submitted the Medical Commission’s report and the decision of the board of directors to the Chancellor of Ankara University.

On an unspecified date, three professors from the Faculty of Law (“the Law Commission”) were appointed by the Dean of the Faculty of Law to examine the investigation file and the report prepared by the Medical Commission.

On 8 April 1999 the Law Commission found that the investigation and the report prepared by the Medical Commission were in accordance with the law, and decided that there was no need to initiate criminal proceedings against the doctors. On the same date the Dean of the Faculty of Law transmitted to the Chancellor of Ankara University the investigation file and the report prepared by the Law Commission.

On 22 April 1999 the applicant objected to the decision of the Law Commission. She claimed that the Medical Commission had failed to cite the names of her three witnesses in the verbatim records, namely Dr M.K., Dr S.N. and Dr E.D. despite her request for them to be heard.

On 15 May 2000 the 2^nd Chamber of the Supreme Administrative Court, taking into account the investigation file and the decision of 8 April 1999, dismissed the applicant’s objections on the ground that there was insufficient evidence to commit the doctors for trial.

On 12 January 1999 the applicant brought an action in the Ankara Administrative Court and sought compensation from Ankara University on the ground that her mother had died as a result of the negligence of the doctors working at the hospital.

On 28 June 1999 the Ankara Administrative Court held a hearing. On the same day, the court, relying on the conclusions of the autopsy and that of the Law Commission’s report, found that the death of the applicant’s mother could not be attributed to the medical treatment she had received in hospital. Consequently, the applicant’s claim for compensation was dismissed.

On 13 September 1999 the applicant appealed, claiming that the first-instance court should have sought the expert opinion of the Supreme Health Council (Yüksek Sağlık Şurası) and not relied on the conclusions of the autopsy report and those of the medical/law commission which were, allegedly, one-sided.

On 27 June 2000 the 10^th Chamber of the Supreme Administrative Court examined the applicant’s appeal. The prosecutor at that court recommended that the first instance court’s decision be quashed on the ground that it had not carried out a serious examination into the circumstances surrounding the death of the applicant’s mother. However, on the same day, the court, unanimously, upheld the judgment of the first-instance court.

On 6 November 2000 the Supreme Administrative Court dismissed a request by the applicant and the public prosecutor for rectification of its decision. According to the notification service (tebliğ mazbatası), the applicant received a copy of that judgment on 3 January 2001.

“Anyone who, through carelessness, negligence or inexperience in his profession or craft, or through non-compliance with laws, orders or instructions, causes the death of another shall be liable to a term of imprisonment of between two and five years and to a fine of between 20,000 and 150,000 Turkish liras.”

Under the Code of Criminal Procedure, a public prosecutor who, in any manner whatsoever, is informed of a situation which gives rise to a suspicion that an offence has been committed, must investigate the facts with a view to deciding whether or not criminal proceedings should be brought (Article 153). However, the public prosecutor’s jurisdiction is restricted ratione personae at the preliminary investigation stage, if the suspected offender falls under one of the categories enumerated in section 53 of the Higher Education Act (Law no. 2547). In such cases, it is for the competent authority (depending on the suspect’s status) to conduct the preliminary investigation and, consequently, to decide whether criminal proceedings should be opened. The decision given by the relevant authority can be challenged before the Supreme Administrative Court. A decision not to prosecute is automatically reviewed by that court.

With regard to civil and administrative liability arising out of criminal offences, section 13 of the Administrative Procedure Act (Law no. 2577) provides that anyone who has suffered damage as a result of an act committed by the administrative authorities may claim compensation from the authorities within one year of the alleged act.

Under the Code of Obligations, anyone who has suffered damage as a result of a tortious or criminal act may bring an action for damages for pecuniary loss (Articles 41-46) and non-pecuniary loss (Article 47). The civil courts are not bound by either the findings or the verdict of the criminal courts on the issue of the defendant’s guilt (Article 53).

The disciplinary procedure concerning civil servants is regulated by sections 125-136 of Law no. 657. Section 125 provides that the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, a pecuniary penalty, a suspension of promotion or dismissal from the civil service.

The procedure to be followed in disciplinary proceedings is regulated by section 53 of Law no. 2547 when the individual is employed under the Higher Education Act.

The Government submitted a number of documents regarding the domestic law on professional standards in the field of health care and patients’ rights. These included the Code of Medical Ethics of 1960, which comprises the rules and principles that doctors and dentists must respect, particularly in the exercise of their profession, and the Medical Professions Act (Law no.1219), which concerns, inter alia, the conditions required to practise as a doctor, dentist, nurse or obstetrician in Turkey.

Section 75 of Law no. 1219 provides a possibility for domestic courts to seek the opinion of the Supreme Health Council (Yüksek Sağlık Şurası) at the Ministry of Health on the medical liability of doctors accused, inter alia, of medical negligence.

Regulation no. 23420 on patients’ rights, published in the Official Gazette on 1 August 1998, encompasses a number of rights, such as the right to care without discrimination, the right to choose medical personnel, the right to information and the right to privacy.

The Government submitted that a number of international instruments, such as the World Medical Association’s Lisbon Declaration (1981), the Amsterdam Declaration (1994) and the Bali Declaration (1995) on the Rights of Patients, had also been considered by the relevant authorities.

The applicant complained under Article 2 of the Convention about the death of her mother and the flaws in the subsequent proceedings.

The applicant complained that her mother had died as a result of medical negligence and that the subsequent proceedings which she had instituted had not made it possible to establish responsibility for her death. She relied on Article 2 of the Convention, which, in so far as relevant, reads:

The Government maintained under Article 35 § 1 of the Convention that the application should be rejected for non-exhaustion of domestic remedies or, alternatively, for failure to comply with the six-month rule.

As to the merits, the Government argued that there was no indication that the applicant’s mother had suffered from an allergy as alleged or that she had died from it. They considered that the medical staff had done all that could have been done in the circumstances. In this connection, they made lengthy submissions as regards her medical condition and the type of treatment she had received. Moreover, the Government maintained that a detailed investigation had been conducted into her death.

The applicant contested the Government’s arguments. In particular, she alleged that her mother had died as a result of the negligent and incompetent behaviour of the doctors attending to her. In this connection, the applicant submitted that her mother’s ulcers had become infected at the hospital and that she had been administered Tienam 500 without an allergy test. She further complained about the medical staff’s disrespectful behaviour towards her and her mother. The applicant submitted that there were contradictions between the reasons why her mother had been admitted to the hospital and the cause of death found in the autopsy report. In this connection, the applicant complained that all her attempts to establish the true cause of her mother’s death had failed. She maintained that it was difficult to secure the criminal prosecution of the negligent doctors owing to the restriction imposed on the public prosecutors at the preliminary investigation stage, and that the domestic courts had failed to examine the witnesses she had proposed or investigate the circumstances in which her mother had died.

The Court considers it unnecessary to determine whether the applicant has exhausted domestic remedies or complied with the six-months’ rule, within the meaning of Article 35 § 1 of the Convention, since her complaint is in any event inadmissible for the following reasons.

The Court reiterates that the first sentence of Article 2 requires the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see Vo v. France [GC], no. 53924/00, § 88, ECHR 2004 VIII). The latter positive obligation extends to the public health sphere. Consequently, States must regulate the health service, whether private or public, in order to provide appropriate measures for the protection of patients’ lives. However, where adequate provision has been made for securing high professional standards in the health service and the protection of patients, an error of judgment (even if established) on the part of a health professional or negligent co-ordination in the treatment of a particular patient do not necessarily or automatically engage the State’s liability under Article 2 of the Convention (see, for example, Byrzykowski v. Poland, no. 11562/05, § 104, 27 June 2006).

In the instant case, the Court observes that the applicant’s mother, an elderly woman with a history of cardiac and hypertension problems, was suffering from severe malnutrition and decubitus ulcers when she was admitted to hospital. She died a few days later, on 15 January 1998, from respiratory and circulatory insufficiency as a result of bronchopneumonia. The applicant did not allege or imply that her mother was intentionally killed by the doctors responsible for her care and treatment at the material time. However, she alleged that these doctors had failed to undertake the necessary measures to properly treat her mother, thereby causing her death. The Government deny this.

At the outset, the Court considers that it is not its function under Article 2 of the Convention to gainsay the doctors’ assessment of Pakize Güngör’s condition, nor their decisions regarding how she should have been treated. These assessments and decisions were made against the background of the deceased’s state of health at the time and their perception as to what steps needed to be taken for her treatment. Having regard to the detailed rules and standards laid down in the domestic law and practice of the respondent State in the area under consideration, it cannot be maintained that the relevant regulatory framework discloses any shortcomings which can lay the basis of an arguable claim of a breach of the domestic authorities’ obligation to protect the right to life of the applicant’s mother.

However, the events leading to the death of the applicant’s mother and the alleged responsibility of the health professionals involved are matters which must also be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny - not least for the benefit of the applicant (see Powell v. the United Kingdom (dec.), no. 45305/99, ECHR 2000-V).

The Court observes that it was open to the applicant to initiate criminal and disciplinary proceedings into the events of the case. It was further open to her to institute administrative proceedings against the relevant public authority. Finally, the applicant could also have brought a civil action in tort against the impugned doctors, seeking compensation for her mother’s death.

In this connection, the Court observes that the applicant did initiate criminal proceedings by way of lodging a formal complaint with the public prosecutor’s office, first, against a nurse and, later, against two doctors. However, due to the restriction in domestic law on the public prosecutor’s jurisdiction at the preliminary investigation stage, the inquiry into the applicant’s complaints, with possible criminal or disciplinary ramifications, was conducted by a medical commission set up by the Chancellor of Ankara University. This commission heard the applicant, the accused doctors and other medical staff involved in the treatment of the applicant’s mother. It also heard a certain Mr Y.U. on behalf of the applicant. The commission further examined the medical evidence contained in the investigation file. It concluded that no fault could be attributed to the doctors for the death of the applicant’s mother. The report prepared in this respect was endorsed by the law commission of Ankara University. The applicant’s objection against this decision to a judicial body, namely the Supreme Administrative Court, was dismissed.

The Court observes that this investigation was initiated promptly and conducted with reasonable expedition. It further notes that the doctors whose actions had been criticised by the applicant were interviewed in the course of the investigation and she was able to take part in the proceedings to the extent necessary to safeguard her legitimate interests. The Court accepts that the applicant is critical of the outcome of this investigation. However, from the standpoint of exposing to public scrutiny both the course of events at the hospital and the decisions taken by the doctors, it does not find any serious defects in the authorities’ conduct. Moreover, even assuming that an issue might arise regarding the appearance of independence and impartiality of the medical commission, despite the subsequent judicial control exercised by the Supreme Administrative Court, the Court reiterates that, if the infringement of the right to life is not caused intentionally, the positive obligation imposed by Article 2 to set up an effective judicial system does not necessarily require the provision of a criminal-law remedy in every case. In the specific sphere of medical negligence the obligation may for instance also be satisfied if the legal system affords victims a remedy in the civil courts, either alone or in conjunction with a remedy in the criminal courts, enabling the liability of the doctors concerned to be established and appropriate civil redress, such as an order for damages and for the publication of the decision, to be obtained. Disciplinary measures may also be envisaged (see Vo v. France [GC], no. 53924/00, § 90, ECHR 2004 VIII).

In this connection, the Court observes that the applicant chose to institute administrative proceedings against the competent administrative authority instead of bringing a civil action in tort against the doctors. The Court notes that there is no indication that the judges sitting on these courts lacked independence and impartiality. The proceedings were prompt and concluded within a reasonable time. On the issue of whether these courts should have heard her witnesses and asked for a medical report from the Supreme Health Council, the Court reiterates that the domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see Gurepka v. Ukraine, no. 61406/00, § 45, 6 September 2005). In particular, the Court finds that there is nothing in the case file to demonstrate that any of the persons named by the applicant would have had any information capable of changing the outcome of the proceedings. In any event, the applicant, who was represented by a lawyer, had the possibility to participate actively in the proceedings and availed herself of her procedural rights to influence their course. The unfavourable outcome for the applicant does not suffice to find the respondent State liable under its positive obligations arising from Article 2 of the Convention.

In the light of the above, the Court finds no indication, in the circumstances of the present case, that there has been any failure by the respondent State to provide a mechanism to establish whether the criminal, disciplinary or civil responsibility of the medical staff involved in her mother’s treatment was engaged.

It follows that the application must be rejected as being manifestly
ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

1 An adverse reaction to the use of digoxin, a drug used in the treatment of various heart conditions.

2 The doctor’s name is illegible from his signature.

3 Debridement is the medical removal of a patient’s dead, damaged or infected tissue in order to improve healing possibilities.

4 An antibiotic which includes in its chemical structure cephalosporin, a type of beta lactam antibiotic.

1 A severe illness caused by overwhelming infection of the bloodstream by toxin producing bacteria.

1 A medical process of inserting a plastic tube through the nose into the stomach of a person for feeding purposes and the administration of drugs.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Sevim GUNGOR v Turkey - 75173/01 [2009] ECHR 767 (14 April 2009) URL: http://www.bailii.org/eu/cases/ECHR/2009/767.html Cite as: [2009] ECHR 767