Download The authorities failed in their obligations vis-à

issued by the Registrar of the Court
ECHR 224 (2015)
30.06.2015
The authorities failed in their obligations vis-à-vis the rights
of a hospital patient
In today’s Chamber judgment1 in the case of Altuğ and Others v. Turkey (application no. 32086/07),
the European Court of Human Rights held, unanimously, that there had been:
a violation of Article 2 (right to life) of the European Convention on Human Rights.
The case concerned the death of Ms Keşoğlu at the age of 74 as the result of a violent allergic
reaction to a penicillin derivative administered by intravenous injection in a private hospital.
The Court pointed out that it was not its role to speculate on the possible responsibility of the
medical team in question in Ms Keşoğlu’s death. It considered, nevertheless, that the authorities had
failed to ensure appropriate implementation of the relevant legislative and statutory framework
geared to protecting patients’ right to life. Indeed, neither the medical experts, who considered that
the death had been a question of therapeutic contingency, nor the Turkish courts had addressed the
possibility that the medical team had infringed the current legal provisions (obligation to question
patients or their families on their medical record, to inform them of the possibility of an allergic
reaction and to obtain their consent to the administration of the drug in question).
Principal facts
The applicants are eleven Turkish nationals – Nilgün Altuğ, Gülgün Ertin, Mihriaver Kayakent, Bercis
Girtine, Banu Altuğ, Ayşe Evrim Üzel, Tuğba Kayakent, Buğra Atalay, Hande Didem Bender, Erim
Enver Ertin and Saruhan Altuğ – who were born between 1947 and 1980 and live in Bursa (Turkey).
They are Ms Ruhsar Keşoğlu’s children and grandchildren.
On 19 February 2002, complaining of stomach pains and high tension, Ms Keşoğlu attended a private
medical centre, which prescribed ampicillin, a penicillin-based drug. Immediately after the drug had
been administered intravenously she suffered cardiac arrest. After being resuscitated she was
rushed to a hospital attached to the medical faculty of Uludağ University, where, despite treatment,
she died on 25 February 2002.
The deceased’s relatives brought criminal proceedings in 2002. They lodged a complaint for
manslaughter and negligence in the performance of duties against the private medical centre and
the doctor and nurse who had treated Ms Keşoğlu. They claimed in particular to have told the
medical team that their relative was allergic to penicillin. The Institute of Forensic Medicine issued
its report on 23 September 2002, basing its findings on medical documents and on the autopsy
performed on the body after exhumation. The report concluded that the cause of death had been
the penicillin injection and that no liability could be attributed to the medical team, since fatal
reactions to penicillin could result simply from the re-administration of a treatment already
administered or even just from the injection of a test dose. These findings were endorsed by an
expert report from the National Health Council ordered in the context of the criminal proceedings.
1 Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
The latter ended with a finding that the prosecution was time-barred (after two judgments
acquitting the defendants).
The applicants had also instituted civil proceedings in 2002, which ended with their compensation
claims being dismissed on the basis of the expert reports used in the criminal proceedings.
Complaints, procedure and composition of the Court
Relying on Article 2 (right to life), the applicants complained of their mother’s/grandmother’s death,
alleging in particular that the medical team had not complied with their legal obligations to conduct
an anamnesis (questioning of patients or their relatives on their medical history and possible
allergies), to inform the patient of the possibility of an allergic reaction and to obtain their consent
to administration of the drug.
The application was lodged with the European Court of Human Rights on 19 July 2007.
Judgment was given by a Chamber of seven judges, composed as follows:
András Sajó (Hungary), President,
Işıl Karakaş (Turkey),
Nebojša Vučinić (Montenegro),
Helen Keller (Switzerland),
Paul Lemmens (Belgium),
Robert Spano (Iceland),
Jon Fridrik Kjølbro (Denmark),
and also Abel Campos, Deputy Section Registrar.
Decision of the Court
Article 2
There was no controversy between the parties as to the existence in Turkey of a legislative and
statutory framework requiring medical staff in all hospitals, whether private or public, to provide
information to patients and to obtain their consent to the treatment envisaged. The applicant'
complaint concerned the capacity of the judicial system to verify respect for those obligations by the
medical team and to penalise any breach thereof.
The Court noted that the applicants had had recourse to two sets of proceedings, one criminal and
the other civil, in order to assert their rights. The criminal proceedings had resulted in a decision that
the prosecution was time-barred. The civil proceedings ended with the dismissal of the applicants’
compensation claims on the basis of three expert reports which had concluded in substance that
their relative’s death had been a question of therapeutic contingency and that the medical team had
committed no mistakes.
However, neither of these judicial decisions and none of the reports produced in the framework of
the different sets of proceedings had addressed, or even satisfactorily dealt with, the applicant’s
principal claim that the medical team had failed to question Ms Keşoğlu – or her relatives – about
her medical history by means of an anamnesis, inform her of the possible risks of penicillin
treatment and seek her consent, in breach of the relevant legislative and statutory texts.
The courts had failed to address this issue of the medical team’s failure to observe the relevant legal
provisions despite the applicants’ repeated requests and the fact that this issue would have been
very important, if not decisive, for settling the dispute, and therefore required a specific, explicit
response from the courts. Although it was not for the Court to speculate on the possible
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responsibility of the medical team in question or the hypothetical outcome of the proceedings in
question had that issue had been considered, it was certain that those proceedings had lacked the
requisite effectiveness to ensure appropriate implementation of the relevant legislative and
statutory framework designed to protect, in the present case, Ms Keşoğlu’s right to life.
Furthermore, the Court observed that the medical team members charged with negligence had
given widely varying accounts of the events in question and that the courts had apparently not
sought to ascertain the precise chain of events leading to the death of the applicants’ relative. The
authorities had therefore failed to provide the applicants with an effective remedy respecting the
procedural safeguards inherent in Article 2 of the Convention. There had therefore been a violation
of Article 2.
Just satisfaction (Article 41)
The Court ruled that Turkey should pay the applicants 20,000 euros (EUR) in respect of nonpecuniary damages and EUR 1,650 in respect of costs and expenses.
The judgment is available only in French.
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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.
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