Andrzej Karpisiewicz v. Poland

The applicant was a Polish national who claimed that his brother (a deceased) had been subjected to improper medical treatment at Kalisz hospital in Poland where the deceased was first examined and treated on emergency on August 26, 2007. After the first treatment, the deceased was diagnosed with acute pancreatitis on August 27, 2007. The next day the deceased “started to behave strangely. He was agitated, walked aimlessly around the ward, kicked the doors, disturbed other patients, was aggressive and talked to himself”. [Para. 5] It was suspected that the deceased’s behavior resulted from alcoholism or pesticide poisoning and tranquilizers had been administered for him.  Because his conditions couldn’t change, the medical team decided for his arms and then his legs to be tied to his bed. Before this was carried out, the deceased hit one of the nurses, broke the room’s window and jumped off from 7^th floor to land at the roof of the 5^th floor of the hospital after which he had to be taken to the ICU; a severe damage had resulted to his head and his legs were fractured for which he underwent operation. This information regarding the incident had been communicated to the deceased’s family, including the applicant and the police. The applicant, however, had heard a different story from a fellow patient who shared the room with the deceased.

The applicant stated that this fellow patient (who also died on September 12, 2007) explained to him that the deceased had been calling out to the nurses to give him something to drink for which no one had responded and that he had freed himself and struggled to open the windows. The applicant stated that the hospital staff hadn’t done anything for the deceased’s call nor tried to control the incident. On August 29, 2007, the applicant had been given a different explanation by the head of the surgical and intensive care wards and the director of the hospital who stated that the deceased had jumped out due to a mental disorder that resulted from the pancreatitis and that the hospital bear no responsibility for it. On September 18, 2007, the deceased died. The postmortem examination report stated that the deceased died due to acute hemorrhagic pancreatitis.

Prior to the death of the deceased but after the incident of his fall, the district prosecutor initiated an investigation under Article 151 of the Polish Criminal Code that provided for the crime of aiding and abetting suicide. The prosecutor stated the hospital’s failure to provide the deceased with adequate medical assistance including proper immobilization.  The prosecution had been based on unintentional homicide and failure to render assistance to a person in a life-threatening situation, offenses under the Articles 155 and 162 (2) of the Criminal Code.

A day after the death of the deceased, the applicant complained to the prosecutor alleging that the hospital staff hadn’t provided the deceased with adequate medical care and even let him while he attempted suicide, that the damages the deceased had suffered affected his treatment for the pancreatitis which in turn led to his death. The prosecutor heard the deceased’s family and the medical team. The prosecutor then ordered an expert opinion on these issues and on the cause of his mental disorders from the Forensic Department of the Poznań Medical Academy. The experts concluded from clinical experience that the deceased’s psychological disorders could have resulted from the alcoholism or from acute pancreatitis complications. They also stated that the deceased had been receiving treatment for both the injury he had suffered from the fall and the pancreatitis. The experts also found that after belts had been applied to him, the deceased was being checked by the nurse every ten minutes. They concluded that the deceased had been provided with sufficient medical treatment and that the injuries from the fall hadn’t affected the treatment for pancreatitis and thus wasn’t related to his death.

The prosecutor then stopped the investigation finding no offense on the part of the hospital’s staff. The prosecutor found the use of belts to restrain the deceased had been done in compliance with the conditions set under the law on protection of Mental Health. The prosecutor noted that although the belt hadn’t been correctly applied that the deceased had been able to free himself from it, it wasn’t the cause for the deceased’s attempted suicide and his death. The deceased hadn’t shown any sign of attempting suicide and there was no evidence that suggested medical negligence that had caused the death in that the deceased’s attempted suicide hadn’t been aided.

The applicant appealed to the district court stating that the prosecutor failed to investigate the case under Article 160 (2) of the Criminal Code i.e., exposing a person to an immediate danger of loss of life or to a serious impairment of health. He stated that the hospital staff should have taken measures to prevent the deceased from attempting suicide knowing that he was suffering from psychotic disorders. The inadequate medical care had resulted in damage to the deceased’s health and then to his death. On a supplement appeal, the applicant stated that the prosecutor had failed to examine the immobilization and the impact of the deceased’s fall on the treatment of his pancreatitis “which only exceptionally could be fatal, and subsequently led to his death.” [Para.24] The applicant further stated that the expert opinion failed to specifically explain how the deceased’s fall hadn’t impacted the treatment of the acute pancreatitis. Because the same doctors from the regional chamber of doctors prepared the expert opinion, the applicant also questioned their impartiality.

The district court upheld the decision of the prosecutor stating that the postmortem report and the expert opinion confirmed the death of the deceased had resulted from the acute pancreatitis. The court held that the treatment provided to the deceased had been sufficient and the damage the deceased had suffered due to his fall hadn’t impacted his treatment for the acute pancreatitis. The court also noted that there was no negligence on part of the hospital as regards the deceased’s immobilization. The court concluded that the hospital staff hadn’t been negligent and couldn’t have prevented the deceased’s injury. Because the experts opinion had been prepared by a group of experts and not one expert, was clear and detailed, then the impartiality allegation was held groundless by the court. The applicant’s request for additional evidences to be considered by the court had been rejected as irrelevant for the decision on the case. Although the belts were not accurately used to immobilize the deceased, the court held that it wasn’t related to his death.

The applicant lodged his complaint before the European Court of Human Rights (the ECHR) under Article 2 of the European Convention on Human Rights (the Convention) stating that domestic authorities failed to diligently and impartially investigate the deceased’s death. He also stated that the authorities had failed to examine the fellow patient who at the time was the only person to witness the incident. The applicant complained that the expert opinion had only stated, in a general sense, that the injuries from the fall hadn’t impacted the treatment of the pancreatitis. Under Article 6, the applicant claimed that the hospital staff hadn’t provided the deceased with sufficient medical care as a result of which he had attempted to commit suicide which then affected the effectiveness of his treatment for the acute pancreatitis. The applicant also claimed that his request for the consideration of additional evidence had been rejected and the results of the criminal proceedings had affected his civil claims on the matter.

The government responded that the applicant had failed to exhaust domestic civil remedies which could have addressed all of his claims. In support of their argument, the government mentioned a domestic case precedent in which the court held that a medical staff would be liable when damage resulted from their failure to take certain steps that could prevent a patient from committing or attempting to commit a suicide. Because the civil and the criminal proceedings could separately be held, the government argued that the applicant could have proceeded with civil actions, especially when the prosecutor had informed him of the same in his decision of July 2008.  The government supported their argument with the case of Trzepałko v. Poland where the ECHR held that claims against hospitals or doctors regarding inadequate medical care could suitably be proceeded with in civil actions.

The government argued that the applicant had failed to institute disciplinary proceedings against the medical team. They also stated that there was no evidence on the hospital’s failure to provide a proper treatment of the deceased and protect his right to life. The medical team couldn’t have predicted that the deceased would be able to free himself and attempt suicide; additional staff was in place (also the action of the deceased had preceded their measures) to minimize the harm the deceased was going to face. The deceased hadn’t shown any sign of attempting suicide prior to the incident and there was no medical negligence that had caused his death. The government argued that the authorities effectively investigated the case in accordance with Article 2 of the Convention and their decision to discontinue the investigation was evidence-based and reasonable. The government further stated that the applicant hadn’t communicated to the prosecutor the information he had received from the patient who was in the same room with the deceased. The government explained to the ECHR that there had been a grammatical error in the prosecutor’s decision that stated that the deceased’s fall had impacted the treatment of his pancreatitis.

The ECHR ruled against the objection of the government and noted that the applicant’s complaints were to be considered assuming the criminal proceedings were relevant to the case.  The ECHR noted that the deceased’s death had resulted from the acute hemorrhagic pancreatitis and hadn’t been related to the injuries he had suffered from the fall. The ECHR thus held that a lack of proper supervision of the deceased by the hospital staff hadn’t led to his death. The ECHR hadn’t found the response of the medical team to the deceased’s condition to be insufficient even assuming that his psychotic disorders had resulted from the acute pancreatitis. The ECHR noted that the hospital staff couldn’t know or shouldn’t have known of the risk that the deceased would attempt to commit a suicide as he hadn’t shown any signs before.

The ECHR held that the authorities hadn’t failed to protect the deceased’s right to life. It also held that there was no reason, in this case, to question the impartiality of the experts or the reliability of their opinion. The ECHR found no reason to believe that the testimony of the patient who shared the room with the deceased would change the results of the investigation had he been heard before he died. Because it believed the investigation had considered all of the circumstances that surrounded the case, the ECHR found no reason to doubt the outcomes and no need to consider additional evidences. The ECHR also noted that the discontinuation of the criminal proceedings hadn’t prevented the applicant from proceeding with civil actions under domestic law. The ECHR held that the authorities had complied with their procedural obligation to effectively investigate the death of the deceased under Article 2 of the Convention. The ECHR found the application manifestly ill founded and rejected it under Article 35 (3)(a) and (4) of the Convention.

“The Court recalls that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients – which was not contested in the present case – it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient, assuming such to have been established, are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.” [Para 48]

“The Court accepts that, as a general rule, in cases of alleged medical negligence medical experts should be designated from a chamber of physicians different from the one to which the defendant doctors are attached. However, in the instant case, there are no elements which could call into question either the independence of the experts appointed or the reliability of their medical opinion.”[Para 59]