Medical Malpractice
It is widely acknowledged that if there is one field of science that has made significant advances in recent years, it is medicine.
Thanks to advances in medical knowledge, patients are increasingly confident that the healthcare they receive will be effective and successful.
Nevertheless, the practice of medicine is not an exact science, and it is influenced by many factors; therefore, it is not unusual for different diagnoses to be made in the same clinical case; and even when there is unanimity regarding the diagnosis, different treatments may be prescribed; and even when there is unanimity regarding the treatment, the results may vary from person to person because many personal and subjective factors influence the outcome, precluding uniformity in the results.
Another point to consider is that, thanks to Spain’s public healthcare system, a vast number of people receive treatment, all within a public healthcare system that is under the resulting strain of providing care.
I understand that these are some of the factors that may explain the significant increase in claims resulting from healthcare services.
In this brief article, we aim to provide an overview of the legal framework governing medical liability; however, it should be made clear that this is a highly complex field involving numerous case-specific scenarios, where the knowledge and experience of the legal professional you consult will be decisive in achieving a favorable outcome, given—as we have emphasized—the complexity and depth of the subject matter.
We do not want to conclude this section without noting that everything discussed here applies equally to the liability that any healthcare professional may incur.
LEGAL LIABILITY IN HEALTHCARE SERVICES
Compliance with the lex artis is the standard required in the provision of healthcare; however, it should be noted that case law holds that medical liability may still arise even in cases where medical practice complies with the lex artis if disproportionate harm has occurred or in cases of loss of opportunity.
This principle does not apply only in the rare cases of cosmetic surgery.
There are three requirements or principles underlying all good medical practice.
1. Lex artis, or compliance with current scientific knowledge.
Thus, only an act that has failed to take this standard into account—or that, despite having done so, has caused excessive harm or a loss of opportunity—may be considered unlawful.
2. Informed consent, which presupposes that the patient has been informed of the risks and contraindications associated with the surgical treatment they are accepting, such that any harmful outcome, should it occur, was both foreseeable and accepted.
3. The absence of a harmful outcome resulting from medical care that deviates from the standard of care, such that a causal link between the medical treatment and the outcome can be established beyond a reasonable doubt.
These are the three factors that a legal professional must consider; if all three are present, the professional should dissuade the client from filing any type of legal claim, which is always costly and can also be harmful. It is important to remember that a client filing a claim for medical malpractice is someone who is emotionally affected, in addition to being physically affected, and therefore cannot be given false hope if they have no realistic chance of success.
CASUISTICS
The most common cases of medical malpractice include the following: Misdiagnosis; Delayed diagnosis; Long wait times; Lack of informed consent; Errors in treatment or surgical procedures; Hospital-acquired infections; Lack of patient follow-up; among others.
Certainly, based on our extensive experience in the legal field in Alicante, these are the most common scenarios in medical malpractice cases.
WHICH ROUTE TO CHOOSE
A second question that legal professionals should ask themselves, once they have addressed the first one discussed above, is what what type of claim to file and which court has jurisdiction.
With regard to the competent jurisdiction, there is no doubt that it is now clear that for any claim involving medical malpractice within the Social Security system, the competent jurisdiction is the administrative courts.
This area of responsibility of the The Public Administration will require, as a prerequisite, that a claim for liability against the Public Administration be filed through administrative channels Only after the statutory deadlines have passed and no agreement has been reached will the way be clear to file a lawsuit in the Administrative Courts, with the type of proceeding determined by whether the amount in dispute exceeds 30,000 euros—the threshold that distinguishes a summary proceeding from an ordinary proceeding, each with its own procedural characteristics.
Outside of this context, civil or criminal proceedings may be brought in cases where the physician’s negligence is deemed so severe that it constitutes a criminal offense.
WHO TO DIRECT THE CLAIM TO
Whoever is the subject of this legal claim for medical malpractice This is a topic that deserves more in-depth treatment than we can provide here in this text, which is intended merely as a brief overview to serve as a starting point.
The liability in question may be classified as contractual and/or tortious, and both types may apply.
Normally, whenever a healthcare professional has been responsible for medical practice, that professional is the first person to contact; however, we should note that when this professional has performed their duties within the Public Administration or Social Security Management Bodies, the State is the primary liable party and must face civil liability proceedings for the malfunctioning of public services.
In such cases, the appropriate legal avenue is administrative litigation, and the client must initially file a claim with the government through this channel; however, once the client is required to file an administrative appeal, that appeal may also be directed against the physician.
Since these are professionals who provide comprehensive services, although on an autonomous and independent basis, in the case of healthcare insurance providers or companies whose names immediately come to mind, it should be noted that, in addition to the healthcare provider, the provider or company itself may also be sued in some cases; and in other cases, just as with claims against Social Security, a claim may be filed directly against the entity or company, without the need to file a claim against the medical or healthcare staff.
As for those Claims brought solely against healthcare personnel may be pursued through civil proceedings and also through criminal proceedings, without prejudice to the civil liability that may be incurred in such cases of criminal liability by the facilities where care is provided or has been provided, as a secondary civilly liable party.
TEST
THE IMPORTANCE OF EVIDENCE IN MEDICAL MALPRACTICE CASES
An important issue is the evidence that can be used in court proceedings to prove medical malpractice or negligence.
The prevailing principle in Spanish law regarding obligations—and let us not forget that this is the area we are dealing with—is that the party demanding performance or the existence of the obligation must provide proof.
LITIGATION IN MEDICAL MALPRACTICE AND LIABILITY
In the context of medical malpractice, whether from the perspective of contractual or extra-contractual liability, the aforementioned principle applies, although it is interpreted very leniently by the courts.
This is due to the difficulties patients face in this type of claim, as they must defend their rights without having any medical knowledge. Consequently, the standard has been relaxed, requiring the physician or medical professional to demonstrate that they acted in accordance with the in accordance with established professional standards and with the corresponding informed consent to prove that they are not responsible.
EVIDENCE IN CRIMINAL PROCEEDINGS
If the legal action is brought in criminal court, the complainant has access to a wider range of evidence than in any other court.
In this context, the judge has the authority to order the presentation of evidence, and the first step will be to have a forensic medical examiner conduct an examination.
EXPERIENCE IN THE COURTS OF ALICANTE
With our extensive experience in the Courts and Tribunals of Alicante, we have found that both the judge and the prosecution tend to be receptive to the evidence proposed by the parties.
This is an advantage of the criminal justice system, in which, in addition to the private medical expert we must certainly provide, we will also have the expert opinion of the medical examiner.
WITNESS AND EXPERT EVIDENCE
Criminal proceedings allow for the use of other forms of evidence, such as the mandatory testimony of witnesses. In this context, all professionals who have been involved in the case are required to testify.
This undoubtedly results in a more extensive evidentiary process than in any other jurisdiction when filing a medical malpractice claim.
MEDICAL HISTORY AND MEDICAL EXPERT OPINION
There are two essential tests in all jurisdictions: the medical history and the medical report. This evidence is essential for any claim.
Without prejudice to other supporting evidence, such as the patient’s own statement or witness testimony, medical records and expert reports are key to establishing the case.
LIMITATIONS ON THE JURISDICTION OF THE ADMINISTRATIVE COURTS
A key point that cannot be overlooked—and which often leads to failure in administrative litigation—is that the services of a medical examiner cannot be used in this type of proceeding.
In this jurisdiction, the plaintiff must provide their own medical expert, which can make it difficult to prove medical malpractice.
Economic Assessment of Damages in Medical Malpractice Cases
A key consideration when filing a medical malpractice claim is to be clear about what to claim, since this clarity will translate into financial terms; it is equally important to know exactly which items are being claimed.
When we talk about damages, they result either from lost income or from expenses that must be incurred, all as a result of medical malpractice.
When assessing these claims, it is necessary to refer to the compensation schedule used for motor vehicle accidents, which is updated annually through the Official State Gazette (BOE).
The aforementioned regulation sets forth a scale of compensation that takes into account all possible damages, but never includes emotional distress.
Compensation for emotional distress will also be sought, but this is an issue where two points are clear: first, that it is at the judge’s discretion, and second, that its quantification is neither provided for nor contemplated, so the judge must determine it, even though it is clear that years of court practice have established amounts that are typically used as a reference.
In some cases, claims are filed not so much for physical injuries as for what are considered emotional distress or financial losses related to the doctor’s actions (loss of earnings).
STATUTE OF LIMITATIONS FOR LEGAL ACTIONS
The deadline for The statute of limitations for filing a medical malpractice lawsuit is one year from the date of death or the stabilization of the aftereffects. for the filing of administrative litigation and civil suits if the claim is non-contractual.
If the claim is brought in civil court but arises from contractual liability, the statute of limitations is five years from the same circumstances mentioned above.
Carlos Baño León Law Firm in Alicante In this article, he has provided you with basic information on a topic that is very important and often leads to litigation.
We simply wanted to provide you with some basic guidance on a rather complex and far-reaching issue.
Please don’t hesitate to contact us if you need specific advice on this matter. With many years of experience and professionalism, we apply the most up-to-date knowledge in this field regarding legislation and case law.
CARLOS BAÑO LAW FIRM
Please feel free to contact our Carlos Baño Law Firm to get the best legal advice.
