CONVICTED TO FREEDOM IN MALPRACTICE CASE LITIGATED BY IDOM OR HOW THE LAW ON AMNESTY ‘WORKS’

Criminal conviction for medical malpractice. IDOM lawyers succeed in proving a medical malpractice incident within a criminal case.

In March 2018, the Supreme Court of Justice issued a final judgment in a medical malpractice case. Although a doctor was criminally convicted for a medical error that led to a patient’s death, the amnesty act applied by the highest court removed the consequences of the conviction. The amnesty served as a wall for the formal recognition of the guilt and was exclusively used to avoid the consequences of the conviction. This conclusion was later reconfirmed when the doctor denied her guilt in a civil case for the repair of damages for her criminal act.

Details of the case

In June 2013, a young patient died in a medical facility of Chișinău in just a few hours after being admitted. She was 24, had recently married and had been delivered of a baby girl two weeks before that.

The lawyers of IDOM’s Litigation and Advocacy Program took over the case and filed a criminal complaint in the interests of the husband of the deceased patient in July 2013. In our complaint, we requested a criminal case to be started on grounds of commission of the crimes set out in art.162 para.2) letter b) of the Criminal Case “Withholding Help from a Sick Person” and art.213 p.b) of the Criminal Code “Violation by Negligence of Medical Assistance Rules and Methods” by the medical staff of four medical facilities, who had provided assistance to the deceased patient at different stages.

The Râșcani District Prosecutor’s Office started a criminal case and pressed charges against an intensive care doctor from a Chișinău medical facility. The doctor was blamed that while she was acting as an intensive care doctor she ignored the rules and methods for providing medical assistance and while she was performing a surgery, viz. catheterizing patient’s central subclavian vein, on the left side by negligence injured the subclavian vein and the apex of the left lung, which caused severe bleeding in the pleural cavity and total collapsing of the left lung (the rib cage contained 3 litres of haemorrhagic liquid and 1.0 kg of coagulated blood mix), which caused the patient’s death.

The forensic report, in addition to the direct cause of the death, also found that the patient had received full, adequate, but late treatment at all stages of her hospitalization and so, the serious general condition of the patient was one of the contraindications for transferring her to another medical facility.

The commission set up by the Ministry of Health at the request of IDOM’s lawyer for examining the quality and quantity of the medical assistance provided to the patient, although flagging numerous gaps in the medical assistance provided to the patient, yet concluded that the medical assistance was suboptimal and that another tactics would have not changed the result and that the case had to considered unavoidable at the hospital level.

The conclusion was based on the fact that the patient was correctly diagnosed with a malign tumour only post mortem. Hence, while alive, although permanently in the sight of medical facilities, she had not been correctly diagnosed or received specific treatment for the disease she was suffering from.

The criminal investigation and trial of the case lasted for three years, during which the accused doctor never admitted her guilt in committing the crime, never atoned, and always pleaded innocent.

In 2016, the Rîșcani District Court of Chișinău ruled to find X guilty of committing the crime provided in art.213 letter b) Criminal Code and sentenced her to 1 year of imprisonment. According to art.90 of the Criminal Code, the enforcement of the punishment was conditionally suspended for a probation period of 2 years. Based on art.78 para.2) of the Criminal Code, the complementary punishment of deprivation of the right to hold certain positions or to carry out certain activities was removed.

The conviction sentence was appealed by the prosecutor and the successor of the injured party via the IDOM lawyer, on grounds of the mild punishment imposed. During the examination of the criminal case and in his verbal statements, the husband of the deceased patient never pleaded for a conviction with a real execution of the punishment by the doctor and let it to the court to establish the punishment. The only successor’s request was to deprive the doctor of the right to perform her doctor’s profession for three years and to reserve his right to file later a civil action for the recovery of his moral damages.

The defendant X also challenged the sentence of the Rîșcani District Court and in her appeal requested to be acquitted.

In February 2017, on the day set for the examination of the appeals, at the beginning of the meeting, the defendant filed a request for terminating the criminal case under the Law on Amnesty no.210 of 29 July 2016, invoking that she pleaded guilty and was feeling sorry. The defendant’s request to have the Law on Amnesty applied contravened her requests from her appeal in which she had not pleaded guilty and requested to be acquitted.

The Criminal Chamber of the Chişinău Court of Appeal decided to reject the appeals filed by the prosecutor of Rîșcani District Prosecutor’s Office, the successor of the injured party and the lawyer  Olesea Doronceanu against the sentence issued by the Rîșcani District Court as being groundless; to accept the appeal filed by the defendant X; to dismiss the sentence of the Rîșcani District Court; to terminate the criminal case against X and to have her release from criminal liability based on the amnesty act.

IDOM lawyers think that the Chișinău Court of Appeal in its judgment committed a serious violation of the rights of the successor of the injured party, and especially of the right to an efficient second appeal (failed to examine his appeal); his right to a fair and controversial proceeding; interpreted the law in an abusive, illegal and extinctive manner; violated the procedural norms for examining the appeal; and indicated findings that were not true and that had not taken place.

Thus, a legal proceeding that required over three years to prove a case of medical malpractice ended in several minutes in a Court of Appeals hearing by exempting the defendant from criminal liability. The doctor pleaded guilty, and not because she admitted she had erred, but rather in order to avoid criminal liability.

The IDOM lawyer filed a second appeal with the Supreme Court of Justice and requested that the judgment of the Chișinău Court of Appeal be quashed. In March 2018, the Supreme Court of Justice ruled to reject the second appeal. Although the court rejected the second appeal, one of the judges of the examining panel issued a split opinion thus pleading for a another solution than the one adopted by majority of votes.

In reasoning his separate opinion, the judge expressed most of the arguments of the defence on which the second appeal was based: i.e. in trying the appeal, the court completely vitiated the trial; it violated a number of procedural norms that generated a violation of the victims right to a fair trial and to an effective recourse (art,6,13 ECHR); the reasoning of the solution contravened the dispositional part of the judgement; the fact that the participants de facto had not attended the examination of the appeals; they did not express their opinions on the appeal etc.

In the opinion of IDOM’s lawyers, the amnesty act could not remove a criminal conviction but could serve as a reason for removing the consequences of the conviction i.e. it removes the criminal liability.

Although requesting the application of the amnesty act and its application is a defendant’s right, this right may not affect the rights of the victim who, in this case, was denied the right to a fair trial by a miming of the trial of the appeal and application of amnesty based on the defendant’s pleading guilty in a formal and insincere manner that was imposed by the circumstances.

Based on this case, we will file a complaint with the European Court of Human Rights invoking violations of the articles 2, 6, and 13 of the ECHR.

Continuity of the case at the national level

In 2017, the IDOM lawyer filed a complaint in the interests of the husband of the deceased patient against the medical facility in which the doctor was working for the compensation of the moral damages caused through the medical malpractice. In our civil action, we requested the court to find a violation of Arts.2 and 8 of the ECHR and collection of an X amount from the defendant for the plaintiff as compensation for the moral damages caused by the defendant’s illicit actions.

The representatives of the medical facility in which the medical malpractice took place do not acknowledge the action or the responsibility of the medical facility for their staff’s acts. The doctor who was convicted and then was pardoned in the criminal case attended all the court hearings and again pleaded innocent, although she had pleaded guilty during the criminal proceedings in order to avoid the consequences of her conviction.

The civil action is pending before the district court.

You may access the sentence and judgement of the Court of Appeal, the decision of the Supreme Court of Justice, and the split opinion of the Supreme Court of Justice here:

SENTINTA

Curtea Suprema de Justitie_DECIZIE

Curtea Suprema de Justitie_Opinie separata

DECIZIE_Colegiul Penal al Curtii de Apel Chisinau

 

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