IACHR refers case on Venezuela to the Inter-American Court

March 31, 2021

Washington, D.C. - On March 22, 2021, the Inter-American Commission on Human Rights (IACHR) filed the case of Balbina Francisca Rodríguez Pacheco and family, regarding Venezuela, before the Inter-American Court of Human Rights. The case refers to the international responsibility of the State for the violation of judicial guarantees and protection to the detriment of Mrs. Rodríguez Pacheco due to the lack of diligent investigation and adequate reparation for alleged acts of medical malpractice committed after the victim underwent a cesarean section.

In 1998, Mrs. Rodríguez Pacheco, a 31-year-old surgeon and mother of three children, attended a prenatal checkup at a private clinic. The attending physician noted the presence of a high-risk pregnancy due to previous c-sections and found, by means of an ultrasound, that Mrs. Rodriguez had placenta previa. As a result, it was decided, with the victim's agreement, to perform an elective c-section on August 13, 1998. During the c-section, Mrs. Rodriguez Pacheco had a hemorrhage caused by a problem with the placenta and, according to her, she asked the surgeon to perform a hysterectomy, but he refused because he considered that the bleeding had apparently subsided.

Four hours later, Mrs. Rodriguez Pacheco presented signs of severe genital bleeding with a decrease in hemoglobin, for which a sub total hysterectomy was performed. Due to her worsening condition, the victim underwent two more consecutive surgeries and had to remain in the Intensive Care Unit (ICU) from August 14 to 19, 1998. On August 20, 1998, Mrs. Rodriguez Pacheco underwent a fourth surgery and six months later a fifth surgery. As a result of alleged acts of malpractice committed on the day of the c-section and during the surgery of August 19, Mrs. Rodriguez Pacheco was left with several serious sequelae, which to date limit her capacity. According to a medical evaluation, the victim has a "Permanent Partial Incapacity for work of 50%".

On January 18, 1999, Mrs. Rodriguez Pacheco filed a criminal complaint before the Lara State Delegation of the Technical Judicial Police Corps for medical malpractice, a case that was finally dismissed due to statute of limitations by judgment of March 20, 2012 of the Twenty-second Court of the Metropolitan Area of Caracas. Other complaints filed by the victim were not resolved by the respective authorities.

In its Merits Report, the Commission analyzed whether, in light of the State's duty to guarantee the rights to personal integrity and health in the face of actions by third parties, the State of Venezuela adopted effective mechanisms for Mrs. Rodríguez Pacheco to complain about her right to health as a result of alleged acts of malpractice in the context of maternal and reproductive health care.

The Commission observed that a medical evaluation established that Mrs. Rodriguez had "SERIOUS INJURIES, caused by SURGICAL ACTS on August 13 and 14, 1998". On the other hand, the Disciplinary Tribunal of the Medical Association of the State of Lara concluded the existence of an incorrect procedure in the medical attention, and even admonished the treating physician in writing and publicly. It also emphasized that the facts relating to the medical interventions and their relationship with the harmful effects on the health and personal integrity of Mrs. Rodriguez, including the creation of a condition of disability, were not disputed before the IACHR. Therefore, it established that these elements, viewed jointly and objectively, allow affirming the existence of deficiencies in the health care provided to Mrs. Rodriguez in a private clinic, which were not investigated, sanctioned or duly repaired due to the actions of the authorities in the investigation.

In relation to the mechanisms provided by the State to claim the rights to health and personal integrity, the Commission established that none of the multiple complaints filed resulted in the prosecution and punishment of those responsible. It also determined that the criminal complaint filed on January 18, 1999 resulted, years later, in the dismissal of the case due to the statute of limitations. Although the petitioner filed an appeal on March 28, 2012 against that decision, the petitioner herself pointed out that they were not allowed to go to trial and that the statute of limitations had expired. The Commission concluded that the State's actions did not comply with inter-American standards of due diligence. It highlighted the manifest lack of diligence on the part of several prosecutors and judges, even during the trial itself. In particular, in the more than thirteen years that had elapsed, despite constant requests from the complainant, no effective investigation was carried out with respect to the principal accused or other possible perpetrators with varying degrees of responsibility, and no action was taken to investigate the case.

On the other hand, the Commission concluded that the failure to investigate a complaint of medical malpractice that caused serious and decisive harm to the enjoyment of Mrs. Rodríguez's right to health, implies not only a violation of due process and judicial protection, but also a violation of the rights to personal integrity and health. It also established that the violation of these rights, as well as the lack of investigation and prosecution, have a disproportionate impact on the victim because she is a woman, given that the facts of the case refer to violations that only occur to women because of a procedure resulting from a cesarean section.

In view of the foregoing, the Commission concluded that the Venezuelan State is responsible for the violation of the judicial guarantees and protection enshrined in Articles 8(1) and 25(1) of the American Convention, in relation to the rights to humane treatment and to health enshrined in Articles 5 and 26 of the Convention, to the detriment of Balbina Francisca Rodríguez Pacheco, as well as Article 1(1) of the Convention, due to the delay and omission of the judicial authorities in the promotion and prosecution of the criminal proceeding. The Commission also concluded that the State is responsible for the violation of Article 7 of the Convention of Belém do Pará to the detriment of Balbina Francisca Rodríguez Pacheco, and of the right to mental and moral integrity established in Article 5(1) of the Convention to the detriment of her next of kin.

In its Merits Report, the Commission recommended that the State:

1. Make full reparation for the human rights violations declared in the Merits Report, both in material and non-material aspects. The State must adopt measures of economic compensation and satisfaction that take into account the effects generated on the life project of Mrs. Rodríguez Pacheco and include due compensation for the suffering and effects produced by the impunity in the case due to the statute of limitations of the criminal action attributable to the State.
2. Provide comprehensive, adequate, permanent and accessible physical and mental health care and assistance, with a gender perspective, including the provision of the medicines and health goods and services that Balbina Francisca Rodríguez Pacheco requires.
3. Adopt the necessary measures to effectively investigate the facts of this case and punish, within a reasonable period of time, the justice operators whose conduct has resulted in the excessive delay in the processing of the criminal proceedings and the consequent lack of access to justice for the victims.
4. Adopt the necessary measures so that the organs of justice and the Public Prosecutor's Office, as well as the Disciplinary Tribunal of the Medical Association develop programs and policies on due prevention and investigation of possible cases of obstetric violence, taking into account the Inter-American standards on the subject regarding due diligence and reasonable time.
5. Adopt programs in the health sector to guarantee women's rights to maternal health when they go to public or private health centers. Create a training program on health and human rights with a gender perspective that is implemented periodically and continuously and that is aimed at reproductive health care personnel as well as judicial personnel, particularly maternal health, in the State of Lara.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 081/21