9
27.
The testimonies and expert reports by the following persons were rendered
through affidavits:
a)
Bismarck Albán-Sánchez: father to Laura Albán, proposed by the
Commission and the representatives, testified on the suffering and the
emotional and financial burden with which his family had to cope after his
daughter died. Likewise, he testified on his frustration and disappointment
regarding the judicial system of his country because the State failed to
provide an efficient response that was due, for it never afforded the
cooperation needed to investigate his daughter’s death and to punish those
responsible. On the other hand, he stated that “there was a major cover-up
[on the part of the Metropolitan Hospital] from the very beginning, [as] they
never promptly revealed the names of the doctors or the nurses.”
b)
Julio Raúl Moscoso-Álvarez: a lawyer, proposed by the Commission and
the representatives, rendered his expert report on Ecuadorian legislation
relating to the scope of the criminal statutes covering medical malpractice. He
stated that no specific statute exists on the matter, and stated that, in his
opinion, the criminal statutes in force are not sufficient. Only Articles 456 and
457 of the Ecuadorian Criminal Code (hereinafter, the “Criminal Code”) make
direct reference to medical malpractice, in an incomplete manner. He further
stated that, in the terms of the Ethics Code, the physicians have a “fraternity”
duty towards their colleagues who are standing trial before them, for which
reason they will not be allowed to testify against them, even if the physician
has committed mistakes.
28.
At the public hearing, the Court received testimony and an expert report by
the following persons, respectively:
a)
Carmen Cornejo de Albán: mother to Laura Albán, proposed by the
Commission and the representatives, testified on the long and complicated
proceedings aimed at clarifying the causes of her daughter’s death and to
have justice done in the instant case. The witness stated that she abandoned
her work as a psychologist in order to devote herself to the quest for justice
in the instant case. She stated that she did not file reports against the
physicians right away after her daughter’s death, because she had been
emotionally unable to do so; furthermore, she “ha[d] to sort many obstacles,
[such as] obtaining the medical file, finding a doctor who [would provide] an
opinion on the death of [her] daughter. Then, at the [Pichincha] Medical
Association [… she] expected their scientific opinion, which [she did] not get.”
She carried out various procedures, among which: she presented the case
before the Ecuadorian Commission on Human Rights (Comisión de Derechos
Humanos del Ecuador) and before the Ecumenical Commission on Human
Rights (Comisión Ecuménica de Derechos Humanos); she instituted
proceedings at the Eighth Civil Court in order to obtain the medical file of her
daughter; she filed a complaint before the Honor Tribunal; and she filed
another complaint against the physicians who had treated her daughter, in
1995, before the then incumbent Attorney General (Fiscal General), who
refused to receive such complaint. She had to wait for a new Attorney
General to take office in the year 1996. This one forwarded her complaint to
the Fifth Criminal Court from Pichincha (Quinto Juzgado de lo Penal de
Pichincha) (hereinafter, the “Fifth Criminal Court”). She told the Court the
difficulties she had to face in order to find a physician who was able to help