The investigation into the criminal complaint for the negligent treatment of the late Emil Šahmanović has not been completed even after more than nine years, and it is not known whether any evidence has been lost in the meantime.
That is why the Ombudsman concluded that the actions of the Podgorica Basic Prosecutor's Office and the unjustified duration of the investigation violated the human rights of the family of the deceased.
In the complaint filed by his brother, Elvir Šahmanović, he writes that the prosecution is acting in an untimely, wrong, unconscionable manner and unjustifiably prolonging the proceedings, the ultimate goal of which is the onset of the statute of limitations.
In June 2009, the Prosecutor's Office filed a case due to the well-founded suspicion that the doctors of the Clinical Center of Montenegro acted negligently when treating Šahmanović.
Šahmanović died at the beginning of June 2009 in the Clinical Center, after injuring his spine in April of that year.
His family then filed a criminal complaint against KC for medical malpractice, asking the court to determine who was responsible for Šahmanović's death.
In his decision, the Protector states that the Podgorica Prosecutor's Office did not take actions and measures for several months, and even years, to end the proceedings.
The Protector notes that only two years after the request was sent, the prosecution insisted that the findings and opinion of the Institute for Forensic Medicine and Criminology of the Faculty of Medicine of the University of Zagreb be submitted.
"However, despite the fact that, even after two years, the Department of Forensic Medicine and Criminalistics of the Faculty of Medicine of the University of Zagreb has not received a finding and opinion, the prosecution is sending additional original medical documentation from the Institute for Physical Medicine, Rehabilitation and Rheumatology, Dr. Simo Milošević ' from Igalo with the proposal that she also be an expert," the decision reads.
By sending the original medical documentation, it is pointed out, it is impossible to make a decision, since the case files with evidence have not been found in Montenegro for several years.
"Also, the Basic State Prosecutor's Office, in addition to not taking into account the deadlines for handling the case, did not take all actions and measures in a timely manner in order to return the original documentation with the necessary evidence and make a decision based on it," the decision reads.
When the medical liability is based on a medical error, the Office of the Ombudsman added, the effectiveness of the investigation is of key importance for the success of the civil proceedings.
It also says that the KC does not have the original medical documents for the deceased, because they submitted them to the prosecution, which the prosecution claims to have sent in the original for expert examination, and that the said Institute in Zagreb never returned the files and evidence in question.
"In addition to obvious failures in work and numerous emergencies and attempts by the injured party and the lawyer to appeal to work and conscientiousness in their actions, the Basic State Prosecutor's Office in Podgorica absolutely ignores this situation".
The prosecution explained that the family expressed doubts about the findings and opinion of the Institute of Forensic Medicine from Belgrade, which was hired by the investigating judge, and requested that a new expert report be conducted in Zagreb.
"Forensic medical expertise with request and complete case files sent on 01.03.2013. to the Supreme State Prosecutor's Office for further action. Act of 11.02.2015. year, the Supreme State Prosecutor's Office was informed that the findings had not yet been submitted and the need to urge them through the Ministry of Justice was indicated... by an act dated September 06.09.2016, XNUMX. "A letter of request was submitted to the Supreme State Prosecutor's Office in order to request the return of the files through the Ministry of Justice," the prosecution's statement reads. Zagreb experts have not returned the case files to date, as the prosecution claims.
Determine where the medical records are without delay
The ombudsman recommended the prosecutor's office to do everything without further delay to determine the location of the case files, i.e. the medical documentation.
"To obtain the specified documentation with evidence and end the procedure, to submit a written response to the complainant's requests without delay and to respond to the citizens' addresses in future proceedings, in accordance with Article 57 of the Constitution of Montenegro," the decision reads.
Šahmanović's family previously filed a criminal complaint against orthopedist Dr. Nenad Vukčević, accusing him of asking and receiving a 500-euro bribe for treatment. Vukčević was sentenced to two months in prison for accepting bribes. He was sentenced to five months in prison by the first-instance verdict, but the Court of Appeal reduced his sentence to three months, and the Supreme Court also reduced his sentence by another month.
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