The Moldovan Institute for Human Rights (IDOM) proved the guilt and liability of the medical staff of three public medical facilities whose actions and inactions caused damages to the life and health of a mother and her son by infecting the latter with HIV.
Circumstances of the case
The Litigation and Advocacy Program of IDOM took over this case in July 2017. The case had been brought forward by a mother who asked IDOM lawyers to get involved and provide qualified legal assistance in view of clearing up the circumstances of her son’s infection with HIV and the unjustified disclosure of her private health data, and of holding liable the persons responsible for infecting the child with HIV as well as those who had disclosed and permitted the disclosure of confidential information about her health condition.
The woman recounted that she gave birth to a boy in 2016. A few days after his birth she, for the first time, found out that she was bearer of HIV and then found out that her son had been infected as well, although she had been tested twice for HIV during her pregnancy and the first test result was negative.
In order to clarify the circumstances of the child’s infection, we filed a complaint with the Ministry of Health of Moldova against the actions of the medical staff of different levels and requested: “carrying out or ordering an epidemiological investigation to clear up the causes and circumstances of exposure to the risk of infection and of infecting the child with HIV; investigating how all the medical facilities involved in this case observed the provisions of the law and protocols upon discovery, prevention and treatment in case of suspicions of infection or infection of the mother and child with HIV; finding the circumstances of disclosure of confidential information about the health condition of the mother by unauthorized medical staff, and sanctioning the persons responsible for the act of disclosure.”
The Ministry of Health carried out a fair and impartial investigation. After the assessment visit, it prepared an Informative Note fairly and fully clarifying the causes and circumstances of exposure to the risk of infection and of infecting the child with HIV.
The Commission found a range of violations and concluded that all those irregularities led to the fact that the pregnant woman had not been diagnosed with HIV in time, the ARV treatment had not been started before and during the pregnancy, and the newborn was breastfed and an ARV prevention treatment for him was not started during his first 72 hours of life. The failure to carry out these prevention measures increased the risk of infection from 2% to 40-45%.
In September 2017, IDOM, when representing the interests of the mother and the child, filed court suits against three medical facilities and requested the court to find violation of the right to health, physical and psychical integrity and life (art.2 ECHR) of the plaintiff’s son by having him infected with HIV due to the errors and negligence committed by the medical staff; to find a violation of the plaintiff’s right to health and physical integrity by failing to diagnose the presence of HIV in her body in due time during her pregnancy, and non-observance of confidentiality; to find a disclosure of confidential information about the plaintiff’s heath condition by unauthorized medical staff; to collect MDL 1,000,000 (one million lei) from the defendants in a solidary manner in favor of the plaintiff and her son as compensation for the moral damages caused by the defendants’ illicit actions.
During the court hearings we proved that the transmission of HIV from the mother to the fetus takes place through the placenta (15%), during the labor and delivery (15%), and during breastfeeding (15%), so the risk of transmission of HIV from an infected mother to the fetus is of 13% to 50%, 30-45% on the average, in the absence of an ARV prevention treatment. An ARV treatment provided to the mother during pregnancy and delivery, lack of breastfeeding and an ARV prevention treatment provided to the child right after birth may reduce the risk of transmission of HIV to the child to 2%.
It results from the statements made by the plaintiff and the circumstances found by the commission set up by the Ministry of Health that medical staff of various levels from various medical facilities failed to show the necessary diligence, due to negligence and lack of professionalism, and did not take all diagnosis and prevention measures set out by the law and the national clinical protocol “HIV Infection in Adults and Teenagers,” and, as a result, a newborn was exposed to the risk of infection and was infected with HIV. The plaintiff was not diagnosed in time with HIV, although she was tested twice for HIV during her pregnancy. Hence, she did not receive the necessary treatment during her pregnancy and so, her child was infected with HIV during pregnancy, delivery or breastfeeding. The child’s infection could have been avoided if all medical workers had conscientiously and responsibly performed their work duties.
Although the plaintiff had followed all medical directions and had been tested twice for HIV, her blood samples were kept in improper conditions and sent late to the laboratory, the test results were not notified in time and the treatment was omitted. At the same time, although during delivery the maternity staff knew that the results of the second HIV test were missing, they did not provide a prevention treatment either to the mother or to the child and did not ask her to suspend breastfeeding, hence the newborn was exposed to the risk of infection from the negligence of the medical staff.
In June 2018, the district court ruled to accept partially the complaint and found violation of plaintiff’s son’s health, physical and psychic integrity, and life by having him infected with HIV as a result of the errors and negligence committed by the medical staff; and a violation of the plaintiff’s right to health and physical integrity by failing to diagnose the presence of HIV in her body in due time during her pregnancy. The court then ordered collection of MDL 600,000 (six hundred lei) in a solidary manner from three medical facilities in favor of the plaintiff as moral damages.
We will appeal the district court’s judgment at the Court of Appeals because, although the district court found and accepted that most serious violations had been committed, it did not order collection of the entire amount of moral damages requested and did not find that a disclosure of plaintiff’s confidential health information had taken place.
During the eight years during which IDOM has provided legal assistance to people living with HIV, this is the first case taken over and litigated in which we invoked and proved that medical facilities were responsible for failing to diagnose a woman with HIV and for infecting a child with HIV.
The plaintiff and her son were represented extrajudicially and in court by the attorney Olesea Doronceanu from IDOM’s Litigation and Advocacy Program.