On 16 November 2016 at 9.15 a.m.: Grand Chamber hearing in the case Lopes de Sousa Fernandes v. Portugal (no. 56080/13)

The applicant, Maria Isabel Lopes de Sousa Fernandes, is a Portuguese national who was born in 1969 and lives in Vila Nova de Gaia (Portugal). On 26 November 1997 Ms Lopes de Sousa Fernandes’ husband was admitted to the hospital of Vila Nova de Gaia (CHVNG) to undergo a nasal polypectomy (extraction of nasal polyps). The operation went well and the patient returned home the next day. Suffering from terrible headaches later that day he immediately went back to the emergency unit at the CHVNG. The doctors on duty diagnosed psychological disorders and prescribed him tranquilisers. They recommended that he leave hospital but Ms Lopes de Sousa Fernandes objected. The next day the patient was examined by a new medical team which detected bacterial meningitis (Pseudomonas). He was transferred to intensive care until 5 December 1997. He was then taken into the general medicine department, where he was treated by Doctor J.V. He left the hospital on 13 December 1997, his state of health being regarded as stable. As his pain subsequently persisted, he went again three times to the emergency unit at the same hospital, where he was hospitalised twice. On 3 February 1998 Doctor J.V. authorised him to leave hospital but, his state of health having worsened, he was admitted on 17 February 1998 to the general hospital of Santo António in Oporto. He died there on 8 March 1998 from the consequences of septicaemia caused by peritonitis and hollow viscera perforation. In response to a letter from Ms Lopes de Sousa Fernandes wishing to understand the sudden decline in her husband’s health, the Inspector General for Health ordered an investigation. Reports of 2002 and 2005 concluded that her husband had been treated correctly. The Inspector General thus decided to close the case, but Ms Lopes de Sousa Fernandes contested that decision. Following fresh assessments, a report concluded that the decision by Doctor J. V. to send the patient for outpatient treatment had not been adequate and appropriate. The Inspector General thus ordered the opening of a disciplinary procedure against him. The complaint by Ms Lopes de Sousa Fernandes to the Medical Association was unsuccessful. She then filed a new complaint for manslaughter with the Oporto criminal investigation and prosecution department. On 15 January 2009 the District Court acquitted Doctor J. V. on the ground that there was no evidence to show that he had been responsible for the death of Ms Lopes de Sousa Fernandes’s husband. On 6 March 2003 Ms Lopes de Sousa Fernandes lodged a new application, seeking damages for the loss she had sustained as a result of her husband’s death. The court dismissed her claims on the grounds that it had not been proven that her husband had undergone treatment that was not adapted to his clinical situation. Ms Lopes de Sousa Fernandes appealed against that decision to the Administrative Supreme Court, which dismissed her appeal in a judgment of 26 February 2013. Relying in particular on Article 2 (right to life) of the European Convention on Human Rights, Ms Lopes de Sousa Fernandes alleges that there has been a violation of her late husband’s right to life. The application was lodged with the European Court of Human Rights on 23 August 2013. In its Chamber judgment of 15 December 2015, the European Court of Human Rights held, by five votes to two, that there had been a violation of the substantive limb of Article 2 of the Convention as to the right to life and, unanimously, that there had been a violation of the procedural limb of Article 2. 3 The Chamber found in particular that the mere fact that the patient had undergone a surgical operation presenting a risk of infectious meningitis should have warranted a medical intervention in conformity with the medical protocol on post-operative supervision. It also took the view that the lack of coordination between the ear, nose and throat department and the emergency unit inside the hospital revealed a deficiency in the public hospital service, depriving the patient of the possibility of accessing appropriate emergency care. As concerned the investigation, the Chamber further found that the Portuguese legal system had not functioned effectively, since, firstly, the length of three sets of internal proceedings did not meet the requirement of promptness and, secondly, none of the proceedings conducted, nor any of the experts’ assessments presented, had addressed satisfactorily the question of the possible causal link between the various illnesses suffered by the patient two days after undergoing his operation. On 2 May 2016 the case was referred to the Grand Chamber at the Portuguese Government’s request.

Font: http://hudoc.echr.coe.int

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