Medical malpractice during pregnancy or childbirth: frequently asked questions. Legal claim for negligence in Spain.

What constitutes medical negligence in Spanish law?

THE patient, the baby or fetus must have suffered physical or moral damages.

It is not enough that the doctor made a mistake. A typical example, is the case of a patient who was given the wrong drug during pregnancy. In the event that due to this error, damage occurs it could be considered medical negligence.

This damage must also have occurred as a result of the negligent action or omission by the doctor or by circumstances rather than natural causes. A negligent action would be, as mentioned above, supplying the wrong drug. On the other hand, an omission would be the decision not to perform a cesarean operation if considered medically necessary.

Finally, there must be a causal relation between the two elements. In other words, the damage suffered must be the result of professional negligence.


Can I claim for a compensation if I have suffered medical negligence during childbirth or pregnancy?

If the aforementioned requirements are met, the injured party could claim compensation for the damages suffered.

A recent ruling by the Criminal Court of Ciudad Real has resulted in the highest compensation award in Spain in a case of medical negligence during childbirth: €5.5 million, as in this case, lack of oxygen during childbirth left the baby quadriplegic.


What is the amount of compensation?

Currently, in Spain no rule exists to determine the value of damages in medical negligence cases. However, the Supreme Court has compromised and accepts the application of the scale for the valuation of the damages caused in traffic accidents of Law 35/2015. This scale consists of a series of mathematical tables that relate to the severity of the damage suffered and provides an economic valuation.

This method establishes three main pillars to calculate compensation: The damages and consequences suffered, the moral damages and the economic damage suffered.


What is the deadline to submit a claim?

The term to submit the claim to the courts is one year from the time of the alleged error if the negligence occurred in a public medical centre, by application of the rule of extracontractual liability of article 1968.2 of the Civil Code and five years if it occurred in a private centre or through the actions of a private doctor, applying here the general rule for contractual liability of article 1964 of the Civil Code.

The term will coincide with the day when the damage occurred or from the day the damage was known, or if the injurie has consequences from when the final injuries are established.

If you have suffered damage caused by medical negligence and need legal advice, contact our lawyers and we will help you.


The information provided in this article is not intended to be legal advice, but merely conveys general information related to legal issues.


Carlos Baos (Lawyer)


Tel: +34 966 426 185


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