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SECOND SECTION

Application no. 34895/09
Aliseydi ELMAS
against Turkey
lodged on 17 June 2009

STATEMENT OF FACTS

The applicant, Mr Aliseydi Elmas, is a Turkish national who was born in 1964 and lives in Malatya. He is represented before the Court by Mr B. Tüfenkçi, a lawyer practising in Malatya.

The facts of the case, as submitted by the applicant, may be summarised as follows.

In 1990 the applicant was diagnosed with rheumatoid arthritis – RA –(romatoid artrit) by an unspecified State hospital and received treatment for that condition.

On 19 November 1996 the applicant was examined by a doctor at the Inönü University Physiotherapy and Rehabilitation Department who confirmed the previous diagnosis of rheumatoid arthritis.

In the meantime, the diagnosis was endorsed by various State hospitals and he underwent a series of operations for that condition.

In 2004, having complained to the Hacettepe University Hospital Rheumatology Department of pain and swelling in the knees, ankles and arms as well as stomach and chest pain, the applicant was diagnosed with “Familial Mediterranean Fever” – FMF (Ailevi Akdeniz Atesi) and “Ankylosing Spondylitis” (Ankilozan Spondolit). According to the applicant’s statements, he was informed verbally by a certain doctor from this hospital that he had received the wrong treatment so far, and that the medication which had been prescribed should be stopped immediately.

Subsequently, the applicant brought a civil administrative proceedings action for compensation before the Malatya Administrative Court against the Inönü University Hospital on account of the incorrect diagnosis and inappropriate treatment.

On 9 October 2006 the Malatya Administrative Court requested an expert report from the Forensic Medicine Institute. According to the report, dated 5 January 2007, which was adopted unanimously by eight doctors of the aforementioned body, no fault could be attributed to the hospital. In the report, the experts, noting that the most significant consequence of FMF was amyloidosis (renal), admitted that this illness could have been detected at an earlier stage by in-depth questioning of the applicant about his medical history (a procedure known as “obtaining an anamnesis”) and that he could have started to take a certain medicine, “colchichine”, which could have delayed the development of amyloidosis. Instead, the applicant had been prescribed medication for the treatment of RA. It was also observed in the report that the results of blood tests for RF (rheumatoid factor) had been consistently negative and the applicant’s other symptoms had not indicated rheumatoid arthritis. It further noted that the reason for the applicant’s polyneuropathy could not be determined. Lastly it stated that it would be more appropriate to treat rheumatological diseases in the Rheumatology Department than in the Physiotherapy and Rehabilitation Department. It concluded that, all things considered, it was difficult to allocate specific fault to the Inönü University Physiotherapy and Rehabilitation Department, as the applicant had been examined by a number of doctors in the past, who had all recommended the same RA treatment, and that the correct diagnosis had been missed at several stages. It noted that Familial Mediterranean Fever is an illness which is rather difficult to diagnose and that even if he had taken “colchicine”, he might nevertheless have developed amyloidosis.

On 5 April 2007 the applicant partly contested the expert report.

On 31 May 2007 the Malatya Administrative Court rejected the applicant’s compensation request and, referring to the Forensic Medicine Institute’s report, held that there had been no gross negligence on which an award of compensation could be based. It mainly relied on the difficulty in diagnosing the illness in question.

On 30 March 2009 the Supreme Administrative Court upheld the decision.

COMPLAINTS

Without invoking any Article of the Convention, the applicant complains about having received the wrong diagnosis and treatment. In particular, he alleges that his renal amyloidosis, which developed as a result of the delayed required treatment, will eventually result in kidney failure.

The applicant further complains that he received an unfair trial and alleged a breach of the principle of impartiality under Article 6 of the Convention.

QUESTIONS TO THE PARTIES

1.  Did the erroneous diagnosis made by various State hospitals from 1990 until 2004, which led to a delay in the treatment of the applicant’s actual illness and resulted in the development of renal amyloidosis and in the complications connected with the aggressive treatment administered for RA constitute a violation of Article 8 of the Convention (see Trocellier v. France (dec.), no. 75725/01, 5 October 2006)? In particular, could the hospitals be considered to have failed to act with due diligence having regard to the following deficiencies which were indicated in the expert report of the Forensic Medicine Institute:

(a)  The initial diagnosis and treatment made at the Physiotherapy and Rehabilitation Department, instead of the Rheumotology Department?

(b)  The diagnosis of RA made despite the fact that it has never been confirmed by any blood test and/or radiological examination (the results of all the blood tests conducted during the treatment in those fourteen years for the determination of RA were negative and the x-ray findings were not compatible with the diagnosis) ?

(c)  The lack of an in-depth questioning of the applicant about his medical history;

(d)  The findings were missed and the erroneous diagnosis made at the beginning was repeatedly taken for granted at all stages?

2.  It appears from the case file that the 3rd Committee of the Forensic Medicine Institute that gave the expert opinion had to refer to a professor of rheumatology. Does this suggest that none of the members of the 3rd Committee was qualified by his/her own expertise, training and special knowledge in rheumatology? In this connection, the State Party is invited to submit the curriculum vitae of the doctors who signed the expert opinion and to provide detailed information on the composition of the Committee of the Forensic Medicine Institute which dealt with the applicant’s case.

3.  Did the requirement that gross negligence on the part of the administration (idarenin agir hizmet kusuru) be found in order to award compensation for the damage incurred as a result of the erroneous diagnosis, which gave rise to the development of renal amyloidosis, comply with the obligation of the State to protect individuals’ physical and psychological integrity under Article 8 of the Convention?

The Parties are requested to submit a copy of the case file pertaining to the administrative proceedings.