17. Court protection of the right to health care
Analysis of the national courts’ practices for 2013 with respect to the patients’ rights protection
Analyzing the national courts’ practices on the basis of data found in the uniform state Register of the courts decisions (hereinafter – Register) we can summarize certain prevailing tendencies, manifested in the national courts’ practices in 2013.
1. Number of criminal lawsuits against individuals guilty of violating patients’ rights still remains insignificant.
The data obtained from the Register show that no lawsuits have been filed against persons guilty of forcing people to become blood donors, illegal experiments on people, unprofessional performance of one’s duties resulting in HIV or another incurable disease infection.
One verdict on the suit #225/337/13-ê was passed under art.134, p.2 of the Criminal Code – illegal performance of abortion. The culprit – a person who had medical background but did not have an official license-certificate enabling her to provide help to the women who wished to end an undesired pregnancy, being aware that her actions are beyond her scope of competence as practicing gynecologist, in violation of the clinical protocol and without due medical documentation (i.e. the medical history for interrupted pregnancy), agreed to perform an abortion on the victim. However, on 10.01.2012, as her condition deteriorated, the victim was brought to a hospital in an ambulance, and had stayed there for about a month, with the diagnosis: incomplete medical abortion with post-hemorrhage anemia and complications of chronic metroendometritis. Unprofessionally performed procedure resulted in the destruction of the integrity of tissues and organs and their functions in the process of medical abortion with further development of complications which were classified as bodily injuries of medium gravity. The person guilty of the crime was sentenced to the penalty in the form of two years in prison without losing the right to hold certain offices or conduct certain types of activities. However, she was sentenced conditionally with the probation term of one year.
In another case the guilty party was accused of possessing neither special license nor adequate medical background while offering medical services that caused serious adverse consequences for the patient. The culprit did not have proper medical education required by the uniform qualification standards, illegally providing medical care. Due to her negligence and lack of caution a young patient suffered bodily injuries, i.e. burn wounds, caused by “paraffin application”. The injuries on both buttocks were classified as those of medium gravity.
A criminal lawsuit involved physicians charged under art. 139 of the CC of Ukraine – denial of medical assistance without solid justification to a sick person by medical worker who must, under existing rules, grant this assistance if he/she is aware that lack of thereof can lead to serious consequences for the patient. The denial resulted in the patient’s death due to intoxication caused by fibro-cavernous lung TB. Death occurred because patient had not been hospitalized on time.
10 criminal lawsuits involved physicians charged under art. 140 of the CC– non-performance or improper performance of professional duties by pharmacists or medical workers as a result of their negligent or careless attitude. In the majority of cases (8 out 10) patients’ death resulted from such actions or lack of thereof, while in two cases the patients lost an organ or its functions.
One of verdicts passed in the lawsuit filed under p.1, art. 140 of CC of Ukraine acquitted the physician. (Case #2018/1-47/11). The court ruled that pretrial inquest bodies had failed to demonstrate - and court hearing failed to prove- that at the time of treatment the victim had conditions which would allow the defendant to assume that she had had any disorders that might have led to the clots formation, which had become the cause of her demise. Therefore, the defendant had adhered to all the requirements concerning the treatment of the victim, with the exception of certain lab analyses, the absence of which could not have influenced the development of the clots.
In another lawsuit an oncologist was accused under the aforementioned article of the CC, of failing to diagnose the skin melanoma in due time, which had led to the death of the patient. Examining the patient with the pigmentation spot which had been injured and showed the signs of inflammation, the physician was inattentive and negligent in the performance of her duties, had not alerted the patient to the possibility of cancerous growth and metastasis, had not checked the condition of the patients’ lymph nodes and had not described the examination results in the patient’s medical history. She had not ordered the ultrasound test; neither had she referred the patient to the oblast’ cancer center for the biopsy test needed for correct diagnosis and removal of the growth.
The oncologist’s errors committed during the patient’s visit, including prescribing dimexide for the neoplasm, failure to refer him to a surgeon or cancer center to have the neck tumor removed, lack of cancer alertness during the patient’s follow-up visit, when the latter had complained of the enlarged lymph nodes in the neck area, failure to send him at that stage to cancer center for the diagnostic biopsy of the lymph nodes, prescribing alcohol applications and failure to register him for the follow-up contributed to the factors which deteriorated the patient’s condition. The patient’s death cause was defined as poly-organic failure caused by melanoma metastasis to the lymph nodes and internal organs.
In another lawsuit (case #106/11825/2012) the guilty party, after the primary examination of the victim, had underestimated the seriousness of the injury factor (the patient had fallen from the 4th floor), the gravity of bodily injuries and general patient’s condition. The broken ribs and pelvis bones were erroneously diagnosed by the defendant as “old injuries”. Neurological disorders were erroneously diagnosed as brain vessels atherosclerosis. The physician failed to instruct medical staff to perform an urgent catheterization of the bladder, EKG, or to seek neurosurgeon’s (neurologist’s) consultation. Having underestimated the seriousness of the patient’s condition the physician failed to take the necessary measures for the patient’s treatment, namely, immediate transfer of the patient to the anti-shock or reanimation ward with infusion/transfusion therapy and other anti-shock treatments. Instead she sent a patient to an unnecessary x-ray, and involved transportation and moving of the patient might have aggravated the patient’s condition. These actions were classified by the court under art. 140 of the CC of Ukraine – failure to perform or inadequate performance of their professional duties by pharmacists or medical workers as a result of negligent or careless attitude.
2. Criminal lawsuits against the defendants who are not medical workers for the violation of the right to health care.
Article 136 of the Criminal Code of Ukraine, envisaging criminal liability for failure to provide care for a person in a life-threatening condition, when such care could be provided, or for the failure to inform relevant persons or bodies of the person’s condition, is of special interest. As to its application, 4 verdicts based on it were passed in 2013.
Peculiarity of this provision consists in the fact that the subjects of criminal proceedings are neither medical workers or officials legally responsible for providing medical care to the persons with life-threatening conditions, nor other persons obliged to provide such care to the said persons by virtue of legal and normative acts, or by civil legal agreement.
In other words, criminal law in fact expanded the scope of the patients’ rights, making other citizens liable for providing medical care to the persons with life-threatening conditions, or at least for informing relevant persons or bodies.
In practical operation, however, this provision causes a lot of problems, especially, in its requirement that a person without any medical background should provide first aid to the victim, although such unprofessional actions might be not only useless, but even harmful for the victim.
The essence of the case #127/5859/13 supports this statement most convincingly: criminal charges were brought against a person who provided first medical aid to his friend who had collapsed, and performed indirect heart massage by pressing on the victim’s chest. The “rescuer” had no medical training to perform the said reanimation procedure. Unaware of possible consequences he started pressing on the victim’s chest, meaning to do heart massage, but instead causing bodily injuries, i.e. breaking the victim’s 6th and 7th ribs on the right side. After these manipulations the defendant understood that the victim could die, and his aid should have consisted in calling the ambulance or taking the victim to the nearest hospital; he, nevertheless, failed to do either and left the victim unattended at the playground where this latter eventually died.
Another graphic example is represented by the court ruling in the case #2113/6099/12 - in this case the passengers of the vehicle which had fallen into a canal in a motor accident were involved. The defendants being totally aware of the fact that the victim was in the canal, with strong current, failed to make sure that the victim was alive and to inform either road inspection officers or medical emergency service of the accident, although they had a chance to help the victim and to call respective services. They left the scene of the accident near the canal, letting the victim get drowned.
Two more verdicts have a lot of similarities: the defendants inflicted various bodily injuries on the victims and refused to provide the required first aid or to call for the ambulance.
Noteworthy, article 136 of the CC of Ukraine was applied by the court in all four cases only because the victims had died as a result of failure to provide the necessary first aid or to call for help although under pp. 1 and 2 of this article this circumstance is not stipulated. But it means that court will pass its ruling on someone’s inertia only if it results in the fatal consequence, i.e. the victim’s death.
3. Lack of consistency in defining the scope of moral damages in medical cases.
The largest sum of money exacted in 2013 for moral damages from a physician guilty of harming a patient, who, nevertheless, had remained alive, amounted to 70 thousand UAH. In this case the physician, ignoring his professional duties and acting negligently and carelessly, had performed an urgent surgery on the victim, removing her uterus without any grounds for that. The procedure had grave consequences for the woman. In another case the sum of moral damages amounted to 80 thousand UAH. The physician conducted an incomplete examination of a young patient; came up with wrong diagnosis (“Orchitis” instead of “Testicle twist”) and ordered an outpatient therapy for a boy who needed immediate hospitalization. As a result necrosis of the testicle developed, followed by its subsequent removal. .
The largest sum collected in moral damages for the death of a patient amounted to 100 thousand UAH. It was exacted from oblast’ children’s hospital for the benefit of the parents of a minor, who had died as a result of surgery performed in the clinic. Ignoring distinct counter-indications the doctors had made wrongly decided that the patient was ready for the surgical intervention.
For civil claims the courts have totally different set of rules and standards. Thus, the largest sum in moral damages was collected in the case # 2-58/11 for the claimant’s benefit. Physicians were guilty of procrastinating during delivery and after it. As a result the newborn developed an acute hypoxia of the brain, which affected its nervous system, leading to the baby’s disability. The compensation of moral damages constituted 400 thousand UAH.
At the same time in a civil claim #2/333/7/13 the court established moral damages for the claimant’s mother’s death caused by inadequate medical care at the amount of 35 thousand UAH.
The case #2/745/7/2013 seemed interesting to us. The claim was submitted by a retired judge and his spouse requesting the reimbursement of treatment expanses and moral damages from raion clinic at the amount of 500 UAH to each claimant. The court satisfied the claim ordering the hospital to pay the said amount for moral damages in full to each claimant. We believe that, coming from a retired judge, well acquainted with the court practice in establishing moral damages, this claim was aimed rather at teaching the said hospital a lesson than at real reimbursement of moral damages to each claimant.
4. Inconsistent practice of identifying respondents in “medical” cases
The practice of national courts still lacks a well-defined stand as to who can be considered “respondent” in the claims dealing with pecuniary and/or moral damages in “medical” cases, irrespective of legal norms in force.
Thus, under article 1167 of the Civil Code of Ukraine, moral damages inflicted upon physical or legal entity by illegal actions, decisions or inertia is reimbursed by the person who had caused it, if the person is found guilty.
Under article 1168 of the Civil Code of Ukraine moral damages caused by death of a physical person is reimbursed to his/her spouse, parents (including adoptive parents), children (including adopted children), as well as to the persons that constituted his/her family.
Article 1172 of the Civil Code of Ukraine runs that moral damages, inflicted by an employee of a legal entity while performing his/her professional duties, are reimbursed by the legal entity.
P. 8 of the Resolution of the Supreme Court of Ukraine Plenum of 31.03.1995 #4 “On court practice in the claims dealing with moral (non-pecuniary) damages” stipulates that moral (non-pecuniary) damages caused by an employee of a legal entity while performing his/her professional duties are the liability of the organization with which the said employee has labor relations, while this latter is regressively accountable to it (articles 130,132 -134 of Labor Code ), unless stipulated otherwise by the special provisions.
These legal norms are adhered to by the courts in the majority of cases. For the case #225/337/13-ê the moral damages within the civil claim in the criminal process was defined at 16 thousand UAH and exacted from the hospital, in which the respondent worked, under article 1172 of the Civil Code of Ukraine, which stipulates that physical person or legal entity reimburses the moral damages inflicted by an employee while performing his/her professional (working) duties.
Similarly, in compliance with the decision made on the case #754/5736/13 moral damages in the amount of 40 000 UAH were exacted from a hospital, in which the doctor brought to criminal liability in 2012, used to work, under article 140 of the Criminal Code of Ukraine. This person, having labor relations with the defendant and working as gynecologist-oncologist, had performed her professional duties inadequately due to her negligent and careless attitude – during the surgery she administered the toxic dose of lidocaine to the victim, causing the death of this latter. 
However, there are exceptions to the rule. For example, in the case #1121/3601/12 the amount of moral damages to be paid to the deceased patient’s family established by the court constituted 5 thousand UAH and was exacted directly from the defendant – an oncologist, who had performed her duties unprofessionally causing the death of the victim – and not from the central raion clinic where she had worked at the time of the crime.
Another scenario includes the civil lawsuits against a hospital as primary respondent and also direct involvement of the physician who has committed medical error and local council that manages the hospital’s finances, as third parties. This was the course chosen by the court in the case #2/102/33/2013. By its ruling it collected pecuniary and moral damages to the patient’s health caused by unprofessional actions of the hospital’s dentist from the Central city hospital, treating the dentist as the third party in the civil process.
5. Ambiguous interpretation of the “moral damages” concept by the courts
Under p. 3 of the Resolution of the Supreme Court of Ukraine Plenum of 31.03.1995 #4 “On court practice in the claims dealing with moral (non-pecuniary) damages” (hereinafter – Plenum), the concept of moral damages implies the non-pecuniary losses suffered as a result of moral or physical suffering or other negative actions inflicted upon physical or legal entity by illegal actions or inaction of other persons. Under the law in force moral damages can include, in particular: degrading of honor, dignity, prestige, business reputation, moral sufferings related to the health deterioration, violation of property rights (including intellectual property), consumers’ rights, other civil rights, unwarranted investigation and trial, ruination of normal life connections due to impossibility of further active public life, destruction of personal relationships and other negative consequences.
The sampling of the analyzed decisions and verdicts passed by the national courts in 2013 shows that usually the courts believe that only physical suffering and/or death of a patient can be regarded as the cause for moral damages.
However, there are some positive changes, as well. For example, ruling on the case #2/259/31/2013, the court arrived at the conclusion that moral damages equivalent to the scope of mental suffering inflicted upon the claimant as a result of his unwarranted hospitalization in a psychiatric ward and his prolonged stay in the said ward, should be partially reimbursed, and established the reimbursement amount at 10 000 UAH.
6. Courts’ reference to the clinical protocols of medical treatment as the source of the law, defining mechanisms and standards for this care, is a positive sign.
For example, in the case # 2/333/7/13 the court, considering the question whether the doctors had to order an obligatory MRI for a patient prior to her discharge, referred to the clinical protocol “Medical treatment of the patients with glial tumors of large brain hemispheres”, approved by the Ministry of Health order # 317 of 13.06.2008. Besides, evaluating the evidence in its decision, the court refuted testimonies given by an expert witness, justifying its decision by the fact that his testimony was contrary to the provisions of the clinical protocol “Medical treatment of the patients with other specified immune-deficit disorders” approved by the Ministry of Health order #626 of 08.10.2007.
Passing a verdict in the case #1-êp/744/7/2013 the court also stressed the doctor’s failure to adhere to the clinical protocol of neo-natal treatment of the newborns with the “newborns’ jaundice ” approved by the Ministry of Health order # 255 of April 27, 2006.
Practice of the European court on Human Rights re patients’ rights protection in the claims against Ukraine
Analyzing European Court’s on Human Rights decisions against Ukraine, passed in 2013, we identified the following tendencies.
1. The Court consistently points at Ukrainian power’s failure to observe the patients’ rights in the penitentiary facilities. Specifically, the Court took certain steps in investigating the inmates’ deaths in in detention centers.
In the case Salakhov and Islyamova v. Ukraine (petition #28005/08,decision of March 14, 2013) the Court raised an important issue of the standards for medical care in detention centers.
The Court underlined that in the former cases involving deaths in the places of custody with subsequent complaints of the families on the total absence or deficiency of medical care before the deaths (articles 2 and 3 of the Convention) the Court considered the complaints mainly, in the focus of article 2.
In the cases where applicants referred to both aforementioned provisions addressing the inadequate medical care available for them in the places of custody, but the fact of death was not present, the Court considered the complaint under article 3 of the Convention (see.,e.g. A.B. vs. Russia, #1439/06, § 114, decision of October 14, 2010).
This case, however, differs from the abovementioned cases. The Court notes that the first applicant, who received specialized treatment in a civil hospital, died within two weeks after the release. That’s why it considered medical care available to the applicant in prison and in investigation isolation center, time frame and relevance of the care in the civil hospital after the applicant had been transferred there, in the focus of article 3 of the Convention. The Court separately considered the issue of cause and effect in the given circumstances and conditions of the applicant’s death in the context of article 2 of the Convention.
The Court believes that detailed medical history reflecting regular medical check-ups and adequacy of the medical care, can refute the applicant’s opinion concerning availability of medical care. Failure to provide official medical documents, on the other hand, puts in doubt availability of the necessary medical examinations of the applicant who is in custody. Proceeding from the fact that the government failed to submit the copies of the relevant medical documents, The Court arrived at the conclusion that the applicant had received no medical care needed for his deteriorating health, neither in prison nor in investigation isolation center, even keeping in mind the fact that he had concealed his HIV status from the officials in violation of article 3 of the Convention.
The Court pointed out that civil hospital is a public institution. Actions or inaction of its medical staff, therefore, can contribute to the liability of the respondent country under article 3.
The Court once again stressed that its task in the focus of article 2 of the Convention is not to pass decisions belonging exclusively to the competence of medical experts or to establish whether the applicant’s disease was curable or not, and, respectively, whether his death could have been averted. Instead, its duty is to establish whether article 2 of the Convention was duly adhered to in order to save the applicant’s life under existing circumstances.
Similarly, in the case Barilo v. Ukraine (petition # 9607/06, final decision of August 16, 2013) a female applicant suspected of having committed felony at work, had disability of the 3rd group, suffered from diabetes and other chronic diseases. She needed insulin injections on the permanent basis, special diet and constant medical observation. These requirements could not be satisfied while she stayed in custody. Despite defense attorneys’ protests, she was placed into Saki prison, where she had stayed for 10 days. In her own words, between February 12 and 16 of 2006 she had to administer insulin injections herself as the paramedic of the prison was on vacation leave and the ambulance refused to come to the prison. Right after her discharge the applicant was admitted to the city hospital of Yevpatoria where she was diagnosed with the diabetes in the grave form and suspicion of diabetic pre-coma (i.e. condition that precedes diabetic coma). Her health deteriorated significantly.
The Court found that the applicant was not given the due medical treatment while staying in custody, and that the conditions of her stay in Saki prison can be classified as inhuman and degrading for her dignity. Although the applicant had stayed there for 10 days only, her sufferings seriously aggravated her health, which had been bad enough already.
In the case Vitkovskiy v. Ukraine (petition #24938/06, decision of September 26, 2013) the Court also arrived at the conclusion that the applicant was not receiving needed medical care while staying in custody. Besides, the Court remarked that the government failed to prove that adequate medical care had been given to the applicant while he was dept in the pre-trial isolation center and in prison. The government also failed to supply information on whether dietary needs of the applicant arising from his stomach disorder had been taken into account. The medical history of the applicant was destroyed, but this fact never absolved the state from the duty to give him the needed medical care while he was in custody.
2. The Court drew Ukraine’s attention to the fact that under article 2 of the Convention it has both positive and negative duties with respect to the protection of life and health of persons within its jurisdiction.
In its decision in the case Arskaya v. Ukraine (petition #45076/05, decision of December 05, 2013), the Court reminded that part 1 of article 2 obliges the state not only to abstain from “conscious” taking of human life, but also to use due measures to protect the life and health of persons within its jurisdiction.
These principles also apply to public health. Aforementioned positive obligations, therefore, require that the state accepts the rules, obliging hospitals, both private and public, to use due measures to protect the life of their patients. They also require efficient independent judicial system, organized in such a way that persons, guilty of patients’ deaths, both in private and public sector, can be charged and sued.
3. National courts still do not pay attention to the conclusions of the forensic examination of the applicants’ or victims’ health within the framework of the national criminal inquests. It can be explained by the fact that expert bodies doing the examination are not really independent from the law-enforcement system, so that corruption and joining of interests are quite common.
Thus, in the case Barilo v. Ukraine the Court pointed out that the state should guarantee the due health care and well-being for the detained persons, including medical treatment when needed. If the government decides to put a seriously sick person in custody and keep him/her there, then it should demonstrate a special concern for providing conditions warranted by specific needs of the disabled person.
The case file included the physician’s opinion that the applicant needed hospitalization as far back as February 6, 2006. The insulin injections were prescribed correctly, but without due consideration to the calories’ content of the food, and the dynamics was not controlled in the laboratory. The expert arrived at the conclusion that the applicant was not getting an adequate treatment between February 6 and 16, 2006. The conclusions of the ARC forensic Bureau, however, contradicted this opinion, stating that the applicant did not need hospitalization and that between February 6 and 16, 2006 the applicant was getting an adequate treatment.
The Court pointed at the contradiction between the conclusion supplied by the forensic department and the expert’s separate opinion, which was not taken into account by the national courts.
4. The Court ruled that medical procedures can be administered only by the trained medical staff. Thus, in the case Yuriy Volkov v. Ukraine (petition #45872/06, decision of December 19, 2013), the Court sustained that the applicant’s complaint did not address the fact of blood test specifically, but rather the fact that the medical procedure had been done by an investigator who had not possessed the required medical knowledge or skills. The Court pointed out that the Ukrainian law is quite explicit on the issue: the investigator might have ordered phlebotomy, but the procedure had to be done only by a qualified doctor. These facts were enough to conclude that interference with the private life of the applicant was illegal under article 8 of the Convention.
Similarly to other cases, mentioned above, The Court, having arrived at this conclusion, pointed out that failure to provide the necessary medical care to the persons held within the penitentiary system, is a structural problem in Ukraine.
1. The state agents are recommended to adhere to the concept of combining positive and negative obligations of the state with respect to protection of life and health of persons within its jurisdiction, consisting in the established understanding that the state shall not only abstain from “conscious” taking of human life, but also use due measures to protect the life and health of persons within its jurisdiction, and to implement this concept in the law-enforcement bodies’ operation.
2. The administration of the non-liberty institutions should pay attention to the fact that failure to provide adequate medical care to the persons held held within the penitentiary system, remains, in the opinion of the European Court for Human Rights, a structural problem, so far unsolved in Ukraine.
3. Taking into account the fact that the number of individuals guilty of “medical” crimes, remains stable and relatively small, the bodies in charge of pre-trial inquest are recommended to be more diligent in the investigation of such crimes, paying special attention to cause-and-effect between the actions or lack of thereof of the persons who had violated the right to medical care and socially harmful consequences, i.e. damages to life and health of people.
4. The national courts are recommended to refer in their rulings to the provisions of the Resolution of the Supreme Court of Ukraine Plenum of 31.03.1995 “On court practice in the claims dealing with moral (non-pecuniary) damages”, paying special attention to the Supreme Court’s of Ukraine interpretation of “moral damages”, which embraces not only damages, caused by physical injuries and/or death of the victim.
5. Court practices in “medical” cases should be systematized and published as a handbook enabling to formulate the principles of establishing what category of entities can be called defendants in these cases (physical person or a hospital with which the said person has labor relations).
6. The national courts should be aware of the obligation to refer in their decisions to the clinical protocols for medical treatment as the sources of law, defining mechanisms and standards for such treatment.
 Prepared by N.Okhotnikova, legal expert of KhHRG