Medical negligence after Lopes de Sousa Fernandes: a blank check to the Member States with respect to the substance of the right to life?

In the Lopes de Sousa Fernandes v. Portugal judgment of 19 December, the Grand Chamber made an attempt to clarify the Court’s case law in the area of medical negligence. Traditionally, the Court has examined cases of death resulting from alleged medical negligence almost exclusively from the viewpoint of the procedural obligations under Article 2. Those obligations require the State to set up an effective judicial system to determine the cause of death and to hold those responsible accountable (e.g. Calvelli and Ciglio v. Italy). In recent years, the Court seemed more and more willing to also examine such cases from the viewpoint of the substantive obligations under this provision. Particularly in the Chamber judgment in the Lopes de Sousa Fernandes case, the Court interpreted these substantive obligations in an expansive manner, which arguably would have turned the Court into “a first- and last-instance medical malpractice court” (joint dissenting opinion of Judges Sajó and Tsotsoria). The Grand Chamber, however, didn’t feel like opening the floodgates and decided to overturn the Chamber judgment, severely limiting the scope of the State’s substantive obligations in this area. Continue reading