30 October 2018 Tuesday

Aydın Gür (no. 2015/3640, 30 October 2018)

The Facts

The applicant stated that doctors at the emergency department, where he took his brother (N.G.) attempting suicide by taking drug at 10.05 p.m., had not sufficiently taken care of him but requested them to wait until their turn as an ordinary patient, as well as had not also intervened with him until he got fainted and fell down.

According to medical records of the hospital, N.G. arrived in the hospital at 10.35 p.m.. Upon medical examinations, he was diagnosed with intoxication and then referred to the university hospital in the province by an ambulance. As revealed by the form issued by the university hospital, N.G. was taken to the hospital at 11.00 p.m. and immediately undergone a medical treatment. However, he developed respiratory arrest. In spite of all medical interventions, he died at 01.10 a.m..

A criminal investigation was initiated into this incident, and the deceased N.G.’s relatives also filed a criminal complaint against the doctors working at the emergency department on that day. The chief public prosecutor’s office sent the investigation file to the Governor’s Office as the doctors were public officers. The Governor’s Office had an examination report issued in respect of the incident and did not accordingly grant permission for investigation.

Upon the challenge against the decision of the Governor’s Office, the incumbent regional administrative court revoked the decision, and a criminal case was filed before the relevant magistrate’s court. At the end of the proceedings, the court acquitted the doctors. However, the Court of Cassation, examining the appellate request, quashed the first instance decision. The magistrate’s court then continued the proceedings and once again ordered the acquittal of the doctors. This decision, which was also appealed, was quashed by the Court of Cassation. Thereafter, the magistrate’s court decided to discontinue the proceedings as time-barred. The appellate review of this decision has been still pending.

Besides, having received the letter of the Ministry of Health whereby his request for redress of his pecuniary and non-pecuniary damages was dismissed, the applicant filed an action for compensation; however, the administrative court dismissed the action. The decision was appealed but thereafter upheld by the Council of State. The applicant whose request for rectification of the Council of State’s decision had been also dismissed lodged an individual application with the Court.

The Applicant’s Allegations

The applicant maintained that the right to life had been violated as his brother in a severe medical condition had died due to the delayed medical intervention.

The Court’s Assessment

The right to life safeguarded by Article 17 of the Constitution imposes significant duties on the State. In cases concerning the alleged violation of the right to life, inferior courts are obliged to conduct an examination with due diligence as required by the Constitution.

As regards the complaints concerning delayed medical interventions as in the present case, it must be particularly noted that information and documents obtained through a criminal or administrative investigation are to be taken into consideration by the administrative courts.

In the present case, the authorities, in rendering the decision, failed to consider the half-hour difference between the time of arrival according to the applicant (10.05 p.m.) and the one in the official records (10.35 p.m.) but merely took into consideration the expert report issued on the basis of the hospital’s medical records. This led to the failure, on the part of the authorities, to discuss the matter underlying the action for compensation.

In spite of a witness statement in support of the alleged delay in the medical intervention, the administrative court did not make an assessment as to these statements. In addition, in dismissing the proceedings, the first instance court neither demanded the video footage of the hospital’s emergency department nor considered whether such an inquiry had been conducted during the criminal investigation.

It has been accordingly revealed that during the action for compensation, the administrative court failed to assess the applicant’s main complaints as well as to clarify the incident in depth.

Besides, speedy conduct of investigation or proceedings into medical incidents is extremely important for safety of all individuals receiving medical services.

Regard being had to the facts that the case was not complex in nature and that the applicant had played no role in the prolongation of the proceedings, it has been concluded that the proceedings lasting for over nine years were not conducted with reasonable speed.

For the reasons explained above, the Court found a violation of the procedural aspect of the right to life safeguarded by Article 17 of the Constitution.