Mantovanelli v. France (8/1996/627/810) 18 March 1997: expert medical report ordered by an administrative court not prepared in accordance with adversarial principle

France - expert medical report ordered by an administrative court not prepared in accordance with adversarial principle (Article R. 123 - now Article R. 164 - of Administrative Courts and Administrative Courts of Appeal Code)

Background

8. On 27 January 1981 the applicants' daughter, Jocelyne Mantovanelli, who was then 20, was admitted to the Nancy Orthopaedic and Accident and Emergency Clinic for an operation on a whitlow on her left thumb.

On the same day, she was transferred to the surgical ward of the Jeanne d'Arc Hospital (Nancy Regional Hospital Centre - "CHRN") at Dommartin-lès-Toul, where she had a second operation the next day. For a year she received periodical treatment there and underwent surgery seven times in the form of repeat operations and skin grafts, and an arterio-vascular examination.

Owing to an infection discovered in February 1982, Miss Mantovanelli was operated on again and a week later the second phalanx of her thumb was removed.

9. On 13 March 1982, having contracted jaundice, Miss Mantovanelli was transferred to the gastroenterology department of Brabois Hospital (CHRN) at Vandœuvre-lès-Nancy. Her condition deteriorated and she fell into a hepatic coma. On 27 March she was transferred to the department for infectious diseases and neuro-respiratory intensive care, where she died two days later.

10. The surgical operations referred to above and the arterio-vascular examination Miss Mantovanelli underwent were carried out under a general anaesthetic. On each occasion a varying combination of seven different drugs was used which always included halothane.

B. The proceedings in the administrative courts

11. Mr and Mrs Mantovanelli were convinced that their daughter's death had been caused by excessive administration of halothane and applied to the administrative courts for a ruling that the CHRN was liable for her death.

I. Article 6 § 1 of the Convention

Compliance with adversarial principle, just like observance of the other procedural safeguards enshrined in Article 6 § 1, relates to proceedings in a "tribunal" - no general, abstract principle that where an expert has been appointed by a court, parties must in all instances be able to attend interviews held by him or to be shown documents he has taken into account.

Convention does not lay down rules on evidence - Court cannot exclude as a matter of principle and in the abstract that evidence obtained in breach of provisions of domestic law may be admitted but has to ascertain whether proceedings considered as a whole were fair.

In the instant case the "purely judicial" proceedings had complied with adversarial principle - however, Court not convinced that applicants had been afforded a real opportunity to comment effectively on expert report - question expert had been instructed to answer pertained to a technical field and was identical with the one that the court had to determine - expert's report likely to have a preponderant influence on court's assessment of the facts.

Applicants could only have expressed their views effectively before expert report had been lodged - no practical difficulty had stood in way of their being associated in process of producing report -applicants had been prevented from cross-examining the people interviewed by expert, who could legitimately have been expected to give evidence along same lines as opposing side in proceedings - applicants had only become aware of documents taken into consideration by expert once report had been completed and transmitted - they had thus been deprived of opportunity to comment effectively on main piece of evidence.

Conclusion: violation (five votes to four).

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