Print Friendly and PDF
only search openDemocracy.net

The Elena Misyurina case: botched procedure or botched investigation?

How and why Russia’s medical community have united in the fight against the country’s Investigative Committee. RU

Elena Misyurina. Source: misyurina-help.ruTwo years in prison – this was the verdict handed down to Moscow haematologist Elena Misyurina in January 2018. But this decision has roused the Russian medical community to action in unprecedented fashion.

Throughout January and February 2018, Russian doctors displayed solidarity with Elena Misyurina to the extent that the public campaign waged in her support has gone all the way to the top. Russia’s deputy prime minister and the presidential press secretary both had to comment on the story. But whether this high-profile case will exert any impact on the work of Russian investigators is an open question.

Trephine biopsy

Elena Misyurina was found guilty on 22 January, 2018. But her story began back in 2013, when she was working at a private clinic called Genotekhnologiya. One July morning, she received a visit from Alexander Bobrov, a 55-year-old man who required a trephine biopsy (a method of diagnosing haematological malignancies which involves taking samples of bone marrow and bone tissue for histological examination).

Bobrov was afflicted by three serious diseases: prostate cancer, diabetes insipidus and myelofibrosis that was transitioning into acute leukaemia. An hour after the procedure, the patient left the clinic and went to work. That same evening, however, Bobrov was transferred to a Medsi clinic and diagnosed with “acute appendicitis”. Bobrov now had signs of internal bleeding; he was operated on, but died three days later.

A year passed before the Investigative Committee came calling, and Misyurina finally discovered that her patient had died. A year after that, in January 2015, a criminal case was opened against Misyurina under Article 109.1 of Russia’s Criminal Code (“Causing death by negligence”). Then, when the statute of limitations expired, another – and even more serious – charge was brought against her under Article 238.2 (“Rendering of services which do not meet safety standards”).

Misyurina has been under travel restrictions since 2015. On 22 January, she was sentenced to two years in a standard regime penal colony and dispatched directly to a detention facility. The judge ruled that the patient died because the haematologist had botched the trephine biopsy procedure, resulting in damage to his blood vessels. In addition, relatives of the deceased demanded 17 million roubles’ (£216,000) compensation for moral damage. Whether a similar claim has been filed against Medsi Group, which conducted the operations on Bobrov, remains unknown: the network of clinics is not familiar with the materials of the case. Medsi’s press office also explained that they “do not and cannot take a stance on the substance of the criminal case”.

#IAmElenaMisyurina

As soon as Russia’s medical community learned of the verdict, a social media campaign was launched in Misyurina’s support. The campaign focused on two primary issues. Firstly, the grounds for positing a cause-effect relationship between the trephine biopsy procedure and the patient’s death were, in the doctors’ eyes, very shaky indeed. Secondly, the doctors argued that the sentence meted out to Misyurina – a jail term for possible iatrogenic injury (a condition inadvertently induced by medical intervention) – was unjustifiably harsh.

Their furore was only to be expected: Misyurina is a specialist who commands wide recognition among the professional community. Since 2014, Misyurina has headed the Haematology Unit of Moscow City Hospital No. 52, where she has established a dedicated bone marrow transplant ward, one of only two under the umbrella of the Moscow Healthcare Department. The first patients to undergo these high-tech operations were scheduled for admittance to the hospital in March this year.

“I don’t believe there would have been such a stormy reaction in Omsk or Yaroslavl. This could only have happened in the capital”

Doctors began replacing their Facebook profile pictures with images of the convicted haematologist; they disseminated the hashtag #яеленамисюрина (#iamelenamisyurina), created a Facebook support group (3,600 members and counting) and launched a dedicated website. A physicians’ association called the Doctors’ Defence League started a charge.org petition calling for the case to be reviewed; as of 28 February, it has been signed by almost 87,000 people. Doctors and patients with haematological malignancies and oncological diseases also set about collecting signatures and handing them over to Russia’s Presidential Administration, the Supreme Court and the Prosecutor General’s Office.

Misyurina’s defence team filed an appeal against the first-instance court’s ruling, as well as a petition to change the preventive measure imposed on her, requesting that she be released from the detention facility prior to the final verdict. A week later, the Moscow city health department intervened. Speaking at a clinical conference on the same day, Leonid Pechatnikov, Moscow’s deputy mayor for social development issues, declared that “a horrendous mistake seems to have been made” and promised that the haematologist would be provided with “the very best lawyers”. On 29 January, Mayor Sergey Sobyanin tweeted that he was “extremely concerned” about the doctor’s case, noting that “cases of this kind should be considered as correctly and objectively as possible.”

lead A medical personnel flashmob in support of Elena Misyurina. Source: Facebook.The haematologist received public support from the head physicians of various Moscow hospitals; the National Haematological Society has appealed to President Vladimir Putin, the State Duma and the Civic Chamber on her behalf; members of the Presidential Council for Human Rights have called for the verdict to be reviewed; and Duma deputies and senators have thrown their weight behind the campaign. Meanwhile, Health Minister Veronika Skvortsova, Deputy Prime Minister Olga Golodets and presidential spokesman Dmitry Peskov have also released statements on the matter, with Peskov asking officials not to aggravate the situation.

On 5 February, the Moscow City Court granted the defence’s request for a change in the preventive measure imposed on Misyurina: two weeks later, she was released from the detention centre and placed under travel restrictions.

“I plan start working again from next week,” Misyurina told me the day after being released. “And I hope that in two or three weeks’ time we’ll still be able to open the bone marrow transplant unit.” It remains unclear when the appeal session regarding the verdict itself will be held: as the doctor noted, the wait could be “anything from two weeks to six months.”

Excerpts from the court’s reasons for judgement, published on 12 February, shed light on previously unknown details. For instance, the Cheremushkinsky district court argued that Misyurina had conducted the biopsy “with procedural, tactical and technical violations”. Medsi, however, doesn’t get away scot-free either: the conclusion of a forensic examination features a number of remarks regarding the autopsy procedure while also proclaiming that “if a diagnosis were correctly established upon the patient’s admission to hospital, and timely surgical intervention performed, a lethal outcome may have been prevented.”

“Express intent”

Regardless of the final verdict, the Misyurina case has forced the Russian medical community to give serious thought to the legal basis and practice of prosecuting doctors when their patients die. Lawyers and doctors who’ve spoken to me about the matter link this process to the so-called “iatrogenic campaign”. Last autumn, Investigative Committee chief Alexander Bastrykin proposed that a special provision relating to liability for medical errors and improper medical care be introduced into the Criminal Code. In addition, Bastrykin instructed the agency to undertake measures aimed at improving the quality of the investigation of such cases.

Alexander Bastrykin. Photo CC BY 4.0: Wiki Commons.The number of criminal cases related to the provision of medical assistance has, in point of fact, increased since then. According to Investigative Committee figures, 6050 allegations were examined in 2017, with 1791 criminal cases being opened on their basis. By way of comparison, Bastrykin remarked in September 2016 that 2,516 reports of medical errors and improper provision of medical care had been received by the investigative agency in the first six months of that year, resulting in the opening of 419 cases.

As Olga Zinovieva, managing partner of the Onegin law firm, explains: “The Misyurina case is part of a general trend we’ve observed over the last three to five years, wherein law enforcement agencies are devoting ever more attention to the medical sphere. The case,” she adds, “illustrates all too well how medical professionals are being improperly charged under a Criminal Code article that was introduced into the text of the code for an altogether different category of crimes.”

More often than not, cases against medical workers are opened under Article 109 (“Causing death by negligence owing to the improper discharge of one’s professional duties”). Misyurina, however, was convicted under Article 238, which presupposes express intent on the part of the charged individual. “In other words, the investigation and prosecution must prove to the court that the doctor knowingly violated certain official regulations,” Zinovieva explains. “The formulation of Article 238 implies that the doctor knows about certain regulations (in this context, procedural ones) and yet deliberately violates them, disregarding the potential for negative consequences and banking on them not to arise. Sometimes, of course, doctors do knowingly violate regulations, but this is extremely rare.”

“The Misyurina case is part of a general trend we’ve observed over the last three to five years, wherein law enforcement agencies are devoting ever more attention to the medical sphere”

The Misyurina case, Zinovieva maintains, typifies modern law enforcement in Russia while simultaneously pointing to the fact that the point of view of the investigation and the prosecution is “not always shared by the courts” in such instances. By way of example, she adduces a recent case from St Petersburg in which the court acquitted an anaesthesiologist-resuscitator who’d been charged for the same offence: in 2016, a patient with preeclampsia was delivered by ambulance to Maternity Hospital No. 1, where doctors had to administer an epidural for normal delivery. As Doctor Piter, a healthcare website in Petersburg, writes, they ended up leaving a piece of catheter in the patient’s lumbar space, which necessitated a C-section and the transfer of the patient to a specialised neurosurgical department, where the catheter was surgically removed. The woman’s condition stabilised within a month, and the baby was born healthy.

“Delivering the verdict, the judge cited a lack of evidence regarding the doctors’ intent to contravene procedure, maintaining that intent must be proven if the offence is to be classified correctly,” says Zinovieva. At the same time, the lawyer doesn’t share the doctor’s indignation regarding the implementation of Article 238 in general, and reminds us of the criminal case that followed the demise in the dentist’s chair of the Mariinsky Theatre’s ballet-master.

In 2016, ballet-master Sergey Vikharev arrived at the Dr Livshits Clinic in Petersburg to undergo a tooth implant procedure. After being administered general anaesthesia, his condition deteriorated sharply, and he died despite 30 minutes of resuscitation attempts. Following an inspection, the Investigative Committee and Rospotrebnadzor (the Federal Service for Supervision of Consumer Rights Protection and Human Well-Being) discovered that the clinic didn’t hold an anaesthesiology and resuscitation license.

The clinic was fined 200,000 roubles (£2,500), with the Investigative Committee initiating criminal proceedings under Article 238 in November 2017. “What we have here, then,” says Zinovieva, “is a medical organisation with no license to administer general anaesthesia and with no technical resources to resuscitate patients in cases of complications arising from the same. And yet said organisation knowingly provided medical services of this kind, banking on there being no adverse consequences. In this case, it was absolutely correct to classify the offence under Article 238 of the Criminal Code. It’s not the code itself that’s deficient – it’s the people who improperly interpret and enforce it.”

Political games

Ivan Pecherey, Associate Professor of the Department of Forensic Medicine and Medical Law at Moscow State University of Medicine and Dentistry, notes that the Misyurina case became a cause célèbre for a combination of reasons.

“First of all, she was given an actual prison term, whereas most doctors receive suspended sentences. The doctor’s guilt has not been proven on the basis of the available materials,” he noted at an online conference held by the Pravo-Med portal. “Secondly, doctors fear for their future: they realise that they enjoy no protections whatsoever as regards the exercise of their professional activities, and that they will be held criminally liable for potential medical errors. Another issue is the way the investigation was conducted: it dragged on for five years and the original charge was changed to a still harsher one, this being done, in my opinion, for one purpose only – to ensure the doctor was given an actual prison term.” Pecherey believes that Misyurina’s jail term could be commuted to a suspended sentence if the charge was reclassified.

“Politicians haven’t ignored this story because there’s an election in March, and doctors at public sector institutions are the electorate”

Alexey Panov, director of the Medical Law Centre, is more pessimistic: “The Investigative Committee have an interest here, the campaign against iatrogenic injuries. Yes, the case has attracted a colossal amount of attention, the prosecutor’s office has said that the forensic medical examinations contradict one another in their findings and that the assembled evidence is insufficient to draw firm conclusions about the doctor’s guilt. But this may not help if there is strategic support aimed, shall we say, at motivating doctors to provide proper medical care from high-ranking figures,” Panov told me. “I imagine there’ll be a guilty verdict, but that the term will be decreased. Political games are often beyond common sense.”

The expert also highlights several additional details: “I don’t believe there would have been such a stormy reaction in Omsk or Yaroslavl. This could only have happened in the capital. We can’t exclude the possibility that certain interests were impacted – interests that may have been related to the provision of commercial healthcare services or else to the activities of the Investigative Committee. Politicians haven’t ignored this story because there’s an election in March, and doctors at public sector institutions are the electorate.”

 


We encourage anyone to comment, please consult the
oD commenting guidelines if you have any questions.