8/5/2019

Individual Application 39/19

Press Release concerning the Judgment Finding a Violation of the Right to Protect Corporeal and Spiritual Existence due to Unavailability of Medical Records

The Facts

On 21 September 2007 the applicant went to the health centre, as he was feeling unwell. He was injected with medication there. Afterwards, he felt numbness and pain in his left leg. As his pain increased, on 24 September 2007 the applicant first went to the same health centre from where he was referred to a state hospital.

Subsequently, the applicant underwent further examinations and treatments nine times in private and public medical institutions; however, his left leg became permanently disabled. The applicant applied to the Ministry of Health on 10 July 2008 and sought compensation for pecuniary and non-pecuniary damages he had sustained due to his disability. The Ministry implicitly rejected his request.

Thereafter, the applicant and his relatives brought an action for compensation before the administrative court on 29 September 2008. The court sent the file to the Forensic Medicine Institute. It was stated in the report issued by the Forensic Medicine Institute that the said intervention had been compatible with the medical rules and that as the medical records pertaining to the date of incident as regards the applicant were not available, no assessment could be made regarding the doctor’s act.

The applicant requested a new expert report, claiming that the previously issued expert report had been erroneous as it included no assessment on the doctor’s act due to the absence of medical records of the material time. The administrative court, finding the relevant expert report sufficient, dismissed the case. The decision was appealed by the applicant but upheld by the Council of State. The applicant’s subsequent request for rectification of the decision was also dismissed.

The Applicant’s Allegations

The applicant maintained that his right to protect his corporeal and spiritual existence was violated as a result of the proceedings conducted into his having been permanently disabled allegedly due to medical negligence.

The Court’s Assessment

In cases where any disability or other disorders occur in the body as a result of medical intervention, the question as to whether the intervention has been carried out in accordance with the current and generally accepted rules can be clarified, to a large extent, through the examination of the records kept during the diagnosis and treatment processes. The responsibility for recording and storing for a reasonable period the data pertaining to the diagnosis and treatment process is incumbent on the health institution carrying out the medical intervention.

In cases where information or documents required to be included in the patient registry file are not submitted to the judicial authorities, thus hindering the assessment of whether the medical institution has complied with its medical responsibilities, this situation should not be interpreted to the detriment of the applicant. Interpretation of the medical institution’s failure to submit the relevant documents to the court, to the detriment of the applicant who was in a weaker position, would impose an excessive burden on the applicant, thereby leading to an unfair situation for him.

In the present case, the inferior court failed to conduct an inquiry as to whether the medical records which were clearly important in the determination of the responsibility of the doctor having examined the applicant upon his complaint of numbness had been kept. Nor did it evaluate how the unavailability of the necessary records would affect the responsibility on the parts of the doctor and the medical institution.

The inferior court, relying on the report issued by the Forensic Medicine Institute which stated, without observing that the responsibility for keeping patient records was incumbent on the medical institution, that no assessment could be made about the doctor in the absence of medical records, concluded that no responsibility attributable to the administration could be established. This conclusion put the applicant at a disadvantage in the face of the respondent administration. Accordingly, it cannot be said that the examination carried out by the inferior court was in compliance with its obligation to establish an effective judicial system.

As a result, it has been concluded; that the inferior court failed to provide an adequate justification on the basis of concrete evidence as to whether the said injection had been administered to the applicant improperly; that the applicant’s allegations were not sufficiently examined; and that therefore the State failed to fulfil the requirements of its positive obligations within the scope of the right to protect corporeal and spiritual existence of individuals.

Consequently, the Constitutional Court has found a violation of the right to protect corporeal and spiritual existence safeguarded by Article 17 of the Constitution.