The expert's opinion is not binding on the court and is subject to evaluation in conjunction with other evidence.

R., acting in her own interests and in the interests of the minor K. She filed a lawsuit against the Committee for Control of Medical and Pharmaceutical Activities of the Ministry of Health (hereinafter referred to as the Committee), JSC National Scientific Center for Motherhood and Childhood (hereinafter referred to as the Scientific Center), state–owned public utility company Medical Association No. 1 of Kurchum District (hereinafter referred to as the medical association), state–owned public utility company Center mother and child" (more – The Center) on the recovery of material damage in the amount of 1,833,090 tenge, amounting to the cost of purchased medicines and compensation for moral damage in the amount of 100,000,000 tenge. The claims were partially satisfied by the decision of the Saryarkinsky District Court of Astana dated April 6, 2012. The court decided: to collect compensation for moral damage in the amount of 500,000 tenge from the medical association in favor of R., compensation for moral damage in the amount of 500,000 tenge from the Center, expenses for the payment of state duty in the amount of 756 tenge in half, 378 tenge each.

The rest of the claim was denied. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the Astana City Court dated June 11, 2012, the decision of the court of first instance remained unchanged. By the decision of the Cassation Judicial Board of the Astana City Court dated August 7, 2012, the decision of the Court of appeal was left unchanged. In the protest, the prosecutor asks to cancel the judicial acts issued in the case and send the case for a new hearing, pointing out that the court's conclusions do not correspond to the actual circumstances of the case, therefore the judicial acts are illegal. After examining the materials of the civil case and discussing the arguments of the protest, the supervisory judicial board of the Supreme Court of the Republic of Kazakhstan overturned the judicial acts issued in the case, and sent the case to the court of first instance for reconsideration on the following grounds.

The court found that on January 13, 2009, the minor K. was admitted to the children's department of the medical unit, where she was diagnosed with Acute diffuse glomerulonephritis, nephrotic syndrome, FPS. Iron deficiency anemia". Due to the negative dynamics, on February 10, 2009, K. was transferred to the nephrology department of the Center, where she was diagnosed with: "Acute tubulointresticular nephritis, active phase. FPS. Sop.: ARVI. O. Conjunctivitis NDSS C3-C4, C4-C5. VSD syndrome. vulvovaginitis. JP." On February 20, 2009, K. The diagnosis was "Systemic lupus erythematosus, acute course, active phase, third degree activity, exudative erythema, capillaritis, arthralgia, lupus nephritis, toxic azotemia, aseptic meningitis, transverse myelitis, lower paraplegia with pelvic disorders." On March 11, 2009, K. was transferred to the scientific center for treatment with the diagnosis: "systemic lupus erythematosus, crisis course, high degree of activity, multiple organ variant, neurolupus, carditis, dermatitis, nephritis. Pulmonitis. Transverse myelitis. Lower paraplegia. Violation of the function of the pelvic organs. Bilateral spontaneous pneumothorax. Steroid diabetes." On April 7, 2009, a medical council appointed the use of the expensive drug rituximab (Mabthera), which has proven itself to be a highly effective treatment for systemic lupus erythematosus complicated by neurological symptoms.

Given that this drug was not included in the scientific center's drug form, it was purchased at the expense of R. In connection with this disease, K. Throughout 2009 and early 2010, she was repeatedly hospitalized at the scientific center, where she underwent treatment. In August 2010, K. was sent by quota to the University Hospital of Dusseldorf, where the diagnosis of systemic lupus erythematosus was not confirmed, and the use of drugs prescribed by Kazakhstani doctors was canceled. Referring to the conclusion of the German experts, R. She filed a lawsuit with the court, arguing that as a result of a medical error made by Kazakhstani doctors and improper treatment, her daughter K. suffered irreparable harm to her health, as a result of which she became a group 1 invalid. She asked to be reimbursed for the purchase of medicines for the treatment of "systemic lupus erythematosus" and to compensate for moral damage. By virtue of the second part of Article 66 of the CPC, the circumstances relevant to the proper resolution of the case are determined by the court on the basis of the claims and objections of the parties and other persons involved in the case, taking into account the applicable rules of substantive and procedural law, which in this case was not done by the court. Guided by the expert opinion dated January 27, 2012, the court concluded that the diagnosis of systemic lupus erythematosus, made by Kazakhstani specialists, and the treatment prescribed by them were correct, and therefore partially satisfied the claim. The Supervisory Board of the Supreme Court of the Republic of Kazakhstan considered that the court's conclusions were made prematurely.

By virtue of part seven of Articles 96 and 77 of the CPC, the expert's opinion is not binding on the court and is subject to evaluation in conjunction with other evidence. In support of the claim, R. indicated that after visiting a German clinic, Kazakhstani doctors excluded "systemic lupus erythematosus" from the diagnosis. In support of his arguments, the plaintiff submitted a letter from the State Institution "Astana City Health Department" and an extract from a medical card, which indicate that K. "the consequences of thoracic myelitis of unclear etiology with the formation of cicatricial atrophic changes in the spinal cord, thoracic paraplegia, urinary tract dysfunction and rectal dysfunction." "Systemic lupus erythematosus" was not diagnosed by doctors after visiting a German clinic. "Systemic lupus erythematosus" is an incurable disease. However, the court did not check and did not properly assess the reasonableness of the costs incurred by the plaintiff for the purchase of medicines for the treatment of systemic lupus erythematosus, and also did not take into account the negative effects of drugs on the body of minor K. The court did not take into account that K. developed steroid diabetes on the background of drug therapy (possibly unjustified). Thus, the court, without eliminating the contradiction between the expert opinion and other noteworthy evidence, came to a premature conclusion about the correctness of the diagnosis made by Kazakhstani specialists.  In addition, an expert study was conducted by specialists from institutions controlled by one of the defendants, the Committee. Independent experts were not involved in the study, which must be eliminated when the case is reviewed again. The Supervisory Board of the Supreme Court considered that during the consideration of this case, the court gave a one-sided assessment of the evidence presented, violated the norms of substantive and procedural law; incorrectly defined and clarified the range of circumstances relevant to the case; the conclusions set out in the judicial acts do not correspond to the circumstances of the case and were made prematurely, including in the satisfied part of the stated the claim. By virtue of Article 952 of the Civil Code and paragraphs 6 and 7 of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2011 No. 3 "On the application by courts of legislation on compensation for moral damage", the amount of compensation for moral damage in monetary terms should be considered fair and sufficient if, when determining its amount, the court takes into account all the specific circumstances related to the violation personal non-property rights of a citizen, and the amount of compensation established by the court allows us to draw a reasonable conclusion about the reasonable satisfaction of the plaintiff's claims.

When determining the amount of compensation for moral damage, both a citizen's subjective assessment of the severity of the moral or physical suffering inflicted on him and objective data are taken into account, in particular: the vital importance of personal non-property rights, the degree of moral or physical suffering experienced by the victim, etc. By filing the above-mentioned claim, R. acted in her own interests, as well as in the interests of her minor daughter. Despite this, the court did not establish the degree of harm to the mother and child, did not distinguish the amount of responsibility of each of the defendants, which must also be eliminated during a new examination of the case. The petition for bringing a protest against the contested judicial acts was submitted to the Prosecutor General's Office by the plaintiff within the time limit established by law, but no decision was made on it, therefore, the time limit for bringing a protest by the court was extended by virtue of part four of Article 398 of the CPC. 

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