WHEN medical malpractice occurs, depending on whether it occurs in a public health center (Spanish Social Security: hospitals, health center (ambulatorio), etc.) or if it occurs in a private centre, the manner of claiming will be completely different.
Claims related to the Public Health System.
These claims are mainly made through administrative contentious jurisdiction by claiming for damages. The deadline to claim are normally one year, from the time when the injury stabilises or sadly at the moment of death.
Claims related to Private Health Centres
This type of claim will be normally filed in the civil jurisdiction, although in some cases it is also possible to proceed in a criminal court.
The term or deadline to claim in these cases, being actions derived from the so-called contractual liability, is now five years (previously 15 years), although in some cases, the deadline of one year may be applicable in cases of extra-contractual liability – that is, a case that is not derived from a contractual relationship between the patient and the private centre.
Example of medical responsibility
Although sometimes we associate an error or medical negligence to the error in a surgical operation, the truth is that the events that usually justify legal actions for medical malpractice are:
Those related to the diagnosis, especially any delay, error or mistake with it.
Lack of informed consent on the part of the patient especially information on alternative options, etc.
Error in the prescription of medications.
Example of judicial decisions
There are countless judicial decisions related to medical malpractice and negligence, and a perfect example is the one made against a well-known private clinic in the Marina Alta in which many people from all over Spain came to give birth.
The Provincial Court of Alicante in its judgment of 06/02/2014, number 24/2014, declared that the doctor, the private clinic and its insurers were responsible for infringement of the lex artis (generally accepted medical rules) and the consequent medical negligence was not for undertaking a caesarean section that accidentally provoked a perforation, but they were considered liable for the delay in the diagnosis of the peritonitis caused.
This, is a usual consequence of the surgical technique used in the intervention of caesarean section, therefore, the provincial appeal court understood that the responsibility was not for having accidentally caused the peritonitis, but for not having diagnosed it in time, nor having performed the diagnostic tests with sufficient urgency, which caused an aggravation in the condition of the patient and subsequent consequences.
If you believe you have suffered from medical malpractice it is important that you gather evidence of everything that happened and that you get a professional advice as soon as possible, in order to defend your rights as a patient. Contact us 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)
White & Baos
Tel: +34 966 426 185
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