ECtHR / Application no. 56080/13 / Judgment Lopes de Sousa Fernandes v. Portugal

Key facts of the case:

10. The applicant was born in 1969 and lives in Vila Nova de Gaia. The applicant’s husband, Mr António Rui Calisto Fernandes, was born in 1957. He died on 8 March 1998 following a series of medical problems that occurred after he had undergone minor surgery for the removal of nasal polyps.

A. The sequence of events leading to the death of the applicant’s husband

1. Treatment in Vila Nova de Gaia Hospital

11. On 26 November 1997 Mr Fernandes was admitted to the ear, nose and throat (ENT) department of Vila Nova de Gaia Hospital (“the CHVNG”) for a nasal polypectomy. He underwent the operation on 27 November 1997 and was discharged from hospital on 28 November 1997 at 10 a.m.

12. On 29 November 1997, at 1 a.m., the applicant took her husband to the emergency department of the CHVNG because he was suffering from violent headaches and was in an agitated state. There he was examined by the doctors on duty, in particular by a neurologist. The doctors considered that Mr Fernandes was suffering from psychological problems and prescribed tranquilisers. The applicant claims that they recommended her husband’s discharge but that she objected.

13. In the morning Mr Fernandes was examined by the new medical team on duty. At 10 a.m. he underwent a lumbar puncture which revealed that he had bacterial meningitis. He was transferred to the hospital’s intensive care unit.

14. On 30 November 1997 a scan revealed a cerebral oedema. On 2 December 1997 another scan revealed that the cerebral oedema had diminished.

15. On 5 December 1997, following an improvement in his clinical condition, Mr Fernandes was transferred to the hospital’s general D. ward, where he was under the care of Dr J.V. He was diagnosed with two duodenal ulcers on 10 December 1997.

16. Mr Fernandes was discharged from hospital on 13 December 1997 as his condition was considered to be stable. A follow-up scan as an outpatient was recommended.

17. On 18 December 1997 Mr Fernandes, who was suffering from vertigo and headaches, was admitted to the emergency department of the CHVNG. He was examined by Dr J.V., who kept him under observation because he had acute diarrhoea, abdominal pain and severe anaemia. Mr Fernandes received blood transfusions.

18. On 19 December 1997 an endoscopy was performed on Mr Fernandes, confirming that he had a gastroduodenal ulcer.

19. On 23 December 1997 Mr Fernandes was discharged from hospital. He was prescribed a special diet and medication. A medical appointment was fixed for 9 February 1998.

20. The applicant’s husband continued to suffer from severe abdominal pain and diarrhoea. On 9 January 1998 he returned to the emergency department of the CHVNG. He was examined by Dr J.V., who did not consider it necessary to admit him. Mr Fernandes therefore returned home the same day.

21. On 25 January 1998 Mr Fernandes was readmitted to the CHVNG. A colonoscopy revealed infectious ulcerative colitis. Bacteriological tests showed the presence of the Clostridium difficile bacterium. Mr Fernandes was placed on a drip and treated with antibiotics.

22. At the request of the applicant and her husband, Dr J.V. discharged the latter on 3 February 1998. Dr J.V. prescribed oral treatment and referred Mr Fernandes for further treatment in the hospital’s outpatient department.

2. Treatment in Santo António General Hospital in Oporto

23. On 17 February 1998 Mr Fernandes was admitted to Santo António General Hospital in Oporto after he was found to be suffering from chronic diarrhoea and microcytic anaemia. He underwent various examinations including a colonoscopy, an endoscopy and blood tests. The medical team considered several possible causes, including an infection with the Clostridium difficile bacterium, but all these possibilities were subsequently ruled out. However, a cytomegalovirus was detected and treatment was given.

24. On 5 March 1998 Mr Fernandes was examined by a doctor who judged the situation to be under control.

25. On 6 March 1998 Mr Fernandes’s condition deteriorated. He was examined by a doctor who suspected a possible perforated viscus. An X‑ray and an abdominal ultrasound were carried out. The latter showed ascites in the abdomen but did not confirm the initial diagnosis. At 5.30 p.m. the applicant’s husband was examined by another doctor who detected some resistance to abdominal palpation. A gas analysis showed metabolic alkalosis, but there were no signs of hypocalcaemia. A sigmoidoscopy was performed which showed that the applicant’s husband had rectocolitis.

26. On 7 March 1998 at 1 p.m. the applicant’s husband was placed on oxygen because he had difficulty breathing. At 3 p.m. Mr Fernandes was examined by a general physician and subsequently by a surgeon. The latter decided that urgent surgery was needed as there was widespread peritonitis. Mr Fernandes was taken to the operating theatre at 4 p.m. and was brought out again a few minutes later in order to be prepared for surgery, in particular by being given a blood transfusion. He re-entered the operating theatre at 8 p.m. He died the following day at 2.55 a.m.

27. According to the death certificate issued by Santo António Hospital, the applicant’s husband died from septicaemia caused by peritonitis and a perforated viscus.

Results (sanctions) and key consequences of the case:

FOR THESE REASONS, THE COURT

1. Joins to the merits, unanimously, the Government’s preliminary objection that the application is manifestly ill-founded and dismisses it;

2. Holds, by fifteen votes to two, that there has been no violation of the substantive limb of Article 2 of the Convention;

3. Holds, unanimously, that there has been a violation of the procedural limb of Article 2 of the Convention;

4. Holds, by fifteen votes to two,

(a) that the respondent State is to pay the applicant, within three months, the sum of EUR 23,000 (twenty-three thousand euros), plus any tax that may be chargeable on that amount, in respect of non‑pecuniary damage:

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5. Dismisses, by fifteen votes to two, the remainder of the applicant’s claim for just satisfaction.

Paragraphs referring to EU Charter: 

21. The issue of health is also addressed in Article 35 of the Charter of Fundamental Rights, which guarantees the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. The provision sets an aspirational goal, stating that “[a] high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities”. For example, according to Article 15 of Council Directive No 2003/9/EC], Member States must ensure that asylum seekers receive the necessary health care, including emergency care and essential treatment of illness, and provide the necessary medical or other assistance to applicants who have special needs.