We are expert lawyers in Medical negligence
In doctor's activity there is always a random element, in the sense that the desired result does not depend exclusively on his behavior but also on other factors outside his action and that are beyond his control, since Medicine is an inexact science. It is for this reason that a desired result cannot be demanded, but the use of the appropriate techniques according to the current state of medical science and the concurrent circumstances in each case, which translates into an obligation of means and not of results.
However, we must differentiate curative medicine, which aims to cure the patient who presents a pathological alteration of his organism, from voluntary medicine, whose purpose is not to cure properly, but acts on a healthy body to improve its aesthetic appearance or to nullify their reproductive capacity. While the physician's obligation in curative medicine is a pure means obligation, in voluntary medicine it is an accentuated means obligation. This means that voluntary medicine is a service lease contract, in which liability will arise if the result that may have been contractually guaranteed is not met or if it has not been received rigorous, detailed and exhaustive information on all risks and alternatives of the intervention, even about the eventuality of a bad result.
There will be medical fault when it is proven that the medical or surgical act was carried out in violation of or without adherence to medical or scientific techniques required for it. In this sense, medical protocols usually make it possible to define what is considered, in this state of science, adequate and prudent medical practice in a specific situation, setting in writing the recommended diagnostic and therapeutic conduct in the event of certain clinical eventualities, which is equivalent to encode the lex artis.
In order for there to be an obligation to compensate, there must be a causal relationship between the medical action and the damage received, that has to be unlawful, that is, a damage that the patient does not have the duty to bear. And the patient will not be obliged to bear the damage when due diligence has not been acted upon or the lex artis ad hoc has not been respected.
Regarding the evidence on the existence of responsibility, the doctor must carry out an active procedural collaborative behavior, since he is the one who has the necessary technical knowledge to explain the events that occurred and, by virtue of the theory of evidentiary ease, the burden of the proof scrolls to who is in the best position relative to the sources of proof. On the other hand, we find those cases in which, after the provision of a health service, a disproportionate damage occurs, and unproven medical fault can be directly deduced because circumstances and common sense indicate that the damage would not have occurred without professional fault. In these cases, the damage is attributed to the organizational or functional aspects of the health service and not to the medical acts themselves.
There may be medical liability in those cases in which there has been an error in the diagnosis, when the scans and the prescribed treatment have not been adequate in relation to the pathologies that the patient presented or there has been a lack of information on a typical risk that has materialized after an adequate surgical intervention, producing a violation of the lex artis on informed consent.
The responsibility of the Health Administration and / or the healthcare center will also occur when damage has occurred as a result of waiting lists or delay in healthcare, due to poor hospital surveillance or due to defects in healthcare organization.
At Tarradellas Advocats we have a long professional career in claims for damages arising from professional actions, whether in the health field or in other areas, such as law, arising from the professional actions of lawyers.
In health care insurance, in which the insured must go for care to the medical staff of the insurer itself, unlike those of free choice, the responsibility may be attributed directly to the insurer.
Civil liability for medicines and health products, whether due to a manufacturing, design and information defect, is another of the cases from which damages are derived and as a consequence, litigation. Included in this section are cases of transfusions contaminated with HIV, defective breast prostheses, defective IUDs or pacemakers ... cases in which, according to the regulations that protect consumers and users, we find a liability that may arise depending on the case, as a several liability by the manufacturer of the product, of the health center and, where appropriate, of the patient's health care insurance entity.
