Vasileva v. Bulgaria

Application No. 23796/10
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The applicant suffered from cancer and underwent mastectomy of her left breast. After two years, she experienced pain in the left side of her chest. After undergoing two bone scintigraphies, a pathological uptake of radioactive tracer was found in her sixth rib. A computerized tomography showed metastasis in the eighth and the ninth rib contrary to the scintigraphy report. More scintigraphies conducted later on showed the same result as the precious one as did a radiography report. However, the tomography was still showing metastasis in the eight and ninth rib. After a year, five doctors decided that the metastasis should be removed by surgery. The applicant asked the surgeon if further tests would be required, as the location of the metastasis was not exactly known. The surgeon informed her that the exact location would be found once he opens up her thorax. The doctor who had performed the mastectomy informed her that the precise location of the metastasis should be found before any surgery. However, the operating surgeon reassured her that no further tests were required. The surgeon removed fragments of her 4th, 5th left ribs rather than the 6th, 8th and 9th. Further the operative report stated incorrectly that the 8th and 9th ribs had been removed. The histology of the removed ribs did not show the presence of any cancerous cells. The surgeon denied that he had made any mistakes. A Scintigraphy showed the uptake of radioactive tracer. A tomography scan conducted reported that the 4th and 5th ribs had been removed and the 6th rib had been fractured.

The applicant first complained to the Ministry of Health, which ordered the Plovdic Regional Health Inspectorate to conduct investigations. Their report stated that as the doctors had observed macroscopic changes to the 4th and 5th ribs, they had decided to remove it. There was no change in the 6th rib and the 8th and 9th ribs in the operation report were a clerical mistake. The Ethical Committee of the hospital did not find any misconduct on the part of the Surgeon.

The Plovdic Court of Appeal dismissed the applicant’s appeal. Thereafter, the Supreme Court remitted the case back to the Court of Appeal, which again dismissed the case and the Supreme Court further dismissed the case.

The applicant alleged that there had been a violation of Article 8 (right to private and family life) and Article 6 (1) (Right to a fair hearing) as there was a lack of impartial system and effective mechanism enabling her to obtain damages.

The Court held that there was no violation of Article 8. The Court relied on expert opinions, which supported the actions of the surgeon. The Court further said that they could not doubt the opinion of the experts merely because the applicant submitted that the experts are under an ethical duty not to criticize their colleagues. The experts had stated that it is in the normal course of action for a surgeon to remove suspected tumors even if it did not turn out to be cancerous. Further it had not been proved that the applicant’s sixth rib had been fractured during the surgery.

The Court further held that there was no violation of Article 6(1) as the Bulgarian authorities made required efforts to ensure that opinions of independent experts be available.

The Court is furthermore unable to accept that the objectivity of the expert opinions in such cases can automatically be called into doubt by the fact that the experts are medical practitioners who are under an ethical duty not to criticise their colleagues. In Csősz v. Hungary (no. 34418/04, §§ 31 and 35, 29 January 2008), in the face of an almost identical submission, the Court held that it was normal for the expert opinions in such cases to be given by medical practitioners. While those practitioners do have an ethical duty not to unduly criticise their colleagues, when acting as court-appointed experts they also bear criminal liability – of which they must be advised before they give evidence – for giving a false opinion (see paragraph 52 above). This must be regarded as a serious deterrent even if prosecutions for such offences are, in view of the complexity of the subject matter, difficult to mount in practice. There is no basis on which to hold that the Convention requires that medical expert evidence be drawn from specialised institutions. On the contrary, examples in the Court’s case-law show that conferring such institutions a key role in medical malpractice cases can in some instances prevent persons who have become victims of such malpractice from effectively vindicating their rights (see Eugenia Lazăr, §§ 78-80, and S.B. v. Romania, §§ 70-74, both cited above)..” (Para 72)

Furthermore, Bulgarian law lays down several safeguards designed to ensure the reliability of expert evidence. Experts whose impartiality is in doubt may be disqualified (see paragraphs 51 above), and experts must give cogent reasons for their conclusions, so as to enable the courts to weigh up any divergences of opinion (see paragraphs 46-48 above). The courts, for their part, can appoint new experts if one of the parties contests an expert report (see paragraph 46 above), and are not bound uncritically to accept expert evidence – on the contrary, they must scrutinise it carefully (see paragraphs 49 and 50 above). Indeed, they have done so in medical malpractice cases (see paragraph 50 above).” (Para 73)

“The question whether the Bulgarian authorities took sufficient care to ensure the independence of the medical experts involved in the proceedings and the objectivity of their conclusions, which was already examined under Article 8 of the Convention (see paragraphs 72-74 above), could also be examined by reference to its Article 6 § 1 (see, mutatis mutandis, Mantovanelli v. France, 18 March 1997, §§ 33-36, Reports of Judgments and Decisions 1997-II; Sara Lind Eggertsdóttir v. Iceland, no. 31930/04, § 47, 5 July 2007; and Placì v. Italy, no. 48754/11, §§ 74-80, 21 January 2014). But, in view of its findings on this point under Article 8, the Court does not consider that the applicant was put at a substantial disadvantage vis-à-vis the surgeon or the hospital in the course of the proceedings for damages that she brought against them, or that those proceedings did not afford her effective access to a court.” (Para 84)

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