Three postponements in a week: who is delaying the hearing of the medical negligence case involving Odrex doctors?
Kyiv • UNN
Last week, the Kyivskyi District Court of Odesa was supposed to continue hearing the case involving Odrex doctors; however, all three scheduled hearings were postponed. Two of them were postponed at the request of the defense.
Last week, three hearings were scheduled at the Kyivskyi District Court of Odesa in the case of private Odrex clinic doctors Vitaliy Rusakov and Maryna Bielotserkovska, who are accused of improper performance of their professional duties, which, according to the investigation, could have caused the death of businessman Adnan Kivan. All three hearings were postponed, two of them following procedural actions by the defense. Why the case, which has been heard for more than nine months, has stalled again was examined by UNN.
One of the hearings did not take place following a motion by Maryna Bielotserkovska’s lawyer to postpone the hearing because of her participation in another court proceeding. The court granted the motion and scheduled the next hearing for September 18.
However, even then it was impossible to proceed with further examination of the evidence. Vitaliy Rusakov’s defense once again moved for the recusal of the presiding judge, Viktor Chaplytskyi. The court considered the recusal motion and denied it, but was unable to continue examining the merits of the case because Rusakov himself failed to appear.
These are far from the first postponements. Since the beginning of the trial, dozens of hearings have been postponed or failed to take place following motions or failures to appear by the defense. Presiding Judge Viktor Chaplytskyi responded to the defense’s actions and appealed to the Qualification and Disciplinary Commission of the Bar.
Oleksandr Sytnykov, a retired judge of the Supreme Administrative Court of Ukraine, explained to UNN that ensuring a case is heard within a reasonable time is the court’s responsibility. Therefore, if lawyers’ repeated failures to appear or motions effectively block the progress of the case, the presiding judge must respond to the situation, since responsibility for compliance with procedural time limits also rests with them.
Undoubtedly, if a lawyer’s actions lead to the protraction of proceedings, the judge must respond. The judge is subject to procedural time limits and may also face disciplinary liability for failing to comply with them. Therefore, a situation may arise in which, due to constant postponements, the judge themselves comes under scrutiny regarding compliance with the time limits
Andriy Misiats, acting chair of the Higher Qualification and Disciplinary Commission of the Bar, also draws attention to the possible consequences of systematic failures to appear.
A combination of failures to appear may indicate not an accidental violation, but a certain pattern of a lawyer’s behavior and their unfair attitude toward their professional duties
He emphasizes that a lawyer’s participation in another proceeding may indeed be a valid reason for failing to appear if it is genuine and properly documented. At the same time, being occupied with another case alone does not automatically mean that a hearing must be postponed. Whether the actions of the lawyers for the Odrex doctors show signs of a disciplinary offense must be determined by the Qualification and Disciplinary Commission of the Bar.
Why are the accused afraid of hearing the medical expert’s testimony?
All these postponements are taking place at the stage when the court is to hear the medical expert. The expert is to provide professional explanations regarding the medical documentation, expert conclusions, compliance with treatment protocols, and the medical aspect of the question of a possible causal relationship between the doctors’ actions and the patient’s death. The guilt of the accused, however, is determined exclusively by the court.
In May, the expert had already appeared in court, but at that time Rusakov’s lawyers initiated the issue of changing jurisdiction. Now that the case has once again approached the examination of the key medical component of the evidence, a series of so-called "procedural maneuvers" has continued.