800,000 LEI IN MORAL DAMAGES CAUSED TO YOUNG WOMAN THROUGH SURGERY ENDED WITH LOSS OF HER REPRODUCTIVE CAPACITY

The Moldovan Institute for Human Rights (IDOM) represented in court the interests of a young woman who had invoked that due to a surgery, her ovaries and fallopian tubes had been removed, which caused her a serious bodily injury and loss of reproduction capacity.

The surgery of laparotomy/bilateral oophorectomy, conducted in the absence of the patient’s informed consent, was proved by the judicial expertise reports to have been an incorrect and unreasoned decision, as the extirpation of ovaries and tubes could have been avoided. The surgical removal of the patient’s ovaries led to early menopause and sterility.

Circumstances of the case:

In February 2017, the IDOM lawyers took over a case at the request of a young woman and her mother who requested an intervention and legal assistance to prove an alleged case of medical malpractice and obtain through court financial and moral compensation for the damages caused through the illicit actions of the medical staff from a medical facility.

According to the young woman’s accounts, one winter morning in 2014 she was admitted to a medical facility, complaining about abdominal pains. At this medical facility, the patient was subjected to a number of medical investigations for making the diagnosis. She was transferred to the septic surgery section where she was examined by several surgeons who excluded any gynecological problems and made a preliminary diagnosis: surgical abdomen/intestinal occlusion. The doctors decided that the patient’s health condition required an urgent surgery. Although the ultrasonography examination results showed gynecological problems (bilateral cysts, endometrial matter on the right, a possible inflammatory process), the surgeons did not request a gynecologist’s advice or involvement in the surgery from the beginning.

The surgery, although urgent, started only late afternoon, at 15.30, through median laparotomy, and was conducted by three surgeons. During the surgery, the surgeons found that the source of infection was gynecological and invited a gynecologist to the surgery room. She decided on and conducted a bilateral oophorectomy (removal of ovaries and fallopian tubes). According to the statements later made by the surgeons, it was the gynecologist who had decided on the removal of the tubes and ovaries, while the surgeons (although they were not decision makers) supported her decision and considered it a right one. The gynecologist said she had not been involved in diagnosing the patient at the pre-surgery stage, the decision to remove her tubes and ovaries was made during the surgery and that it was a collective, not a personal, decision.

Before the surgery, none of the medical staff requested the patient’s consent to the surgery, although such a consent is mandatory, or explained her the surgery or the possible post-surgery consequences, although at that moment her condition was not extremely serious and she was rational and conscientious. Later, the young woman found out that the informed consent to the surgery had been requested and signed by her mother who had signed an agreement to the surgery but not to the removal of her daughter’s ovaries and tubes.

In March 2017, IDOM lodged a lawsuit in the interests of the young woman and her mother (indirect victim) and against the medical facility for the compensation of the moral and material damages caused.

In our legal action, we requested the court to find that the surgery of median laparotomy/bilateral oophorectomy (removal of ovaries and fallopian tubes) was unjustified, incorrect and unreasoned, and resulted in serious bodily injury to the patient; to find that the medical assistance provided to the patient was incomplete due to the doctors failing to make a correct diagnosis before the surgery; it was only partially correct; failing to notify the patient about the risks, need and consequences of the intervention; failing to request the patient’s consent to the surgery; underestimating the ultrasonography results and failing to involve a gynecologist at the pre-surgery stage; to collect MDL 2,000,000 (two million lei) for the benefit of the plaintiff in moral damages from the medical facility; to collect MDL 200,000 (two hundred thousand lei) for the benefit of the patient’s mother in moral damages from the medical facility; and to collect MDL 148,834.16  (one hundred forty eight thousand eight hundred thirty four lei and 16 bani) from the medical facility for the plaintiff in material damages.

During the court hearings, we proved the material and moral damages caused to the patient through the physical and psychological suffering she experienced then and had every day since. The woman was caused sufferings related to her incapacity of having a child because the unjustified removal of her reproductive organs caused the impossibility to conceive and give birth to a child in the future, to experience the emotions of pregnancy and motherhood, of breastfeeding, raising and taking care of a child. At the time of the surgery, the woman did not have children and the sterility caused her a huge psychological trauma, this pain being amplified by the awareness of the fact that this situation was irremediable. Her moral damages were also justified through the distress caused by the plaintiff’s incapacity of having a family, of being able to work or be financially self-sufficient (due to the depression that appeared because of the stress); sufferings caused by the reduction of her life quality (the menopause implies undergoing hormone substitution therapy for the rest of one’s life; in addition to the continuous use of hormonal medications, this also causes suffering, leads to a considerable weight gain, increases the risk of breast or cervical cancer, osteoporosis and urinary tract infections).

The guilt of the medical staff from the medical facility where the patient had been operated upon was also proved through two judicial expertise reports that found that: “The removal of both ovaries and fallopian tubes was an incorrect and unreasoned decision based both on the patient’s medical card data and the specialized literature; the extirpation of ovaries and tubes could have been avoided; the pre-surgery ultrasonography diagnosis (that suspected an ovarian endometriosis) was underestimated; the removal of the ovaries and tubes did not have vital signs and was selected as an incorrect method of surgical treatment; such a surgery can be conducted only in the presence of an informed, explicit and written consent.”

In July 2018, the first instance court ruled: “to admit partially the complaint for collecting moral and material damages; to collect MDL 800,000 (eight hundred thousand lei) in moral damages and 14,328.92 (fourteen thousand three hundred twenty eighty lei and ninety-two bani) in material damages from the X medical facility for the benefit of the plaintiff.”

We will appeal the first instance court judgment to the Court of Appeals, because even if the complaint had been partially admitted, the plaintiffs consider that the amounts of moral and material damages ruled by the court are too small.

The interests of the plaintiff and her mother were defended in court by the lawyer Olesea  Doronceanu from IDOM’s Litigation and Advocacy Program.

 Court judgment

Hotărâre judecătorească

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