December 2023

Decision of the Athens Trial Court of Appeal on Conviction for Exposure which caused grievous bodily harm

A decision was recently published by the Athens Criminal Court of Appeal in which the perpetrators, in this case doctors - surgeons, following a complaint by our client - the sufferer, were convicted for the offence of exposure (in a broad sense) resulting in serious bodily harm to the latter. In particular, on the basis of Art. 306 par. 1 and 2 of the Criminal Code. Whoever exposes another person and thereby renders him helpless, as well as whoever leaves a person in his care helpless {...} shall be punished by imprisonment of at least six months; 2. If the act caused the victim a) serious bodily harm, imprisonment of at least three years shall be imposed".

In this particular case, as it emerged from the hearing, the victim (only 27 years old) was operated on by the defendants to remove a benign brain tumour (acoustic neuroma) of about five centimetres in size, in order to remove the pressure phenomena it was creating in the victim's brain and to remove the real risk of loss of sight, hearing or even the life of the victim. The defendants (who operated on the plaintiff through the ear, that is to say, with an incision a few centimetres behind the ear), although they did not succeed in removing the entire tumour, falsely claimed before the plaintiff and her relatives that the tumour had been completely removed. At the same time, the perpetrators instructed the victim post-operatively to have an MRI scan of the brain two years after the operation and not earlier, despite the fact that the CT scan carried out after the operation in question showed the persistence of the pressing phenomena in the brain stem. However, the MRI scan carried out two years later (in accordance with the post-operative instructions) showed the persistence of the same tumour (allegedly removed) in the brain of the victim, which, as a result of two years of pressure on her optic nerves, had caused irreparable damage to her eyes, i.e. total blindness. The removal of the risk to the life of the victim came about 2.5 years after the above surgery when, following neurosurgery, which was the appropriate procedure for tumours of that size, the neurinoma was completely removed. What is important to point out in this case is that it is not a classic case of medical negligence (i.e. a non-de lege artis medical act) but an act (and a consequence thereof) committed with possible malice on the part of the perpetrators, even if we accept that the latter (as they claimed) 'thought' that the tumour in question had been removed. In order to establish the relevant malice, we have argued various indications, among the most important of which are: 

Α) The very medical status of the defendants and the "inexcusable" in their case conscious ignorance: A physician must, according to this position, take every appropriate action to verify the results of his interventions, he must remove any form of doubt with the tools given by medical science, he is not allowed, therefore, to "assume" but must "make sure" through timely and valid examinations, otherwise he accepts a risk to the lives of his patients. In order the MRI after surgery had to be done earlier, at most within six months, 

B) complete disregard for the sufferer after surgery, 

C) the financial self-interest of the perpetrator and the avoidance of the possibility of reimbursement of the unjust remuneration received on the assumption of the inability to remove the tumour; and

(D) avoiding damage to the doctor's ego and reputation in the event of admission of the contested failure of the operation.