Discover the steps to take in order to file a medical malpractice claim and get justice in Spain.
The medical profession has a body of specialised knowledge to ensure the health of patients. All this knowledge and its implementation are governed by a set of ethical rules.
In particular, doctors have protocols for action that ensure that medical practice is always oriented towards the correct healing of the patient.
Sometimes, however, the consequence of the medical professional's practice is injury or physical or psychological harm to the patient. When this happens, we may be talking about medical malpractice.
So how can we claim for medical malpractice? It will have to be very specific and very well accredited, as it would entitle the patient or his family to obtain financial compensation. It is not easy to determine whether the injury or damage was caused by medical malpractice or whether it is part of the risks associated with certain interventions or treatments.
Table of contents:
When does medical malpractice occur?
Medical malpractice can arise at any stage of health care. The doctor is liable for the risks caused by his or her lack of expertise from the beginning to the end of the process. A process that begins with examination and diagnosis.
For example, it is negligence if the physician fails to appreciate serious pathology, or if he or she does not perform an examination or tests properly.
When the diagnosis is made, it may be wrong, although this is not always due to negligence. If the consequences are very serious for the patient, this medical liability will have to be considered in depth.
After the diagnosis, the doctor has to choose which treatments or interventions are to be performed on the patient. This is precisely the point at which medical malpractice occurs most frequently.
For example, it is common for material to be left inside the patient after surgery. Or it may happen that, after the operation, there is no adequate follow-up, putting the patient's recovery at risk.
What are the requirements for medical malpractice?
Fundamentally, there must be what is known as malpractice. That is to say, that the professional has not followed the accepted practices within the profession and the established protocols for action.
However, doctors often have to take risks with cases or diagnoses that are not at all clear and that depend on their own judgement.
In these more unclear cases, to prove negligence, the physician's actions must be compared with how the rest of the profession would have acted in the same circumstances.
Medical lex artis
Here we come to the concept of 'lex artis'. This is the judicial term for the professional standards and quality that can be demanded of the medical profession, as opposed to the malpractice mentioned above.
The 'lex artis' is based on the decisions that would generally have been taken by the profession as a whole in a particular case. It is used by comparison, as it is not a set of specific, established rules.
In essence, this means that a physician may depart from the accepted standards of the profession in a situation that requires it, but only if the risks are carefully measured and explained to the patient.
In short, a physician is considered to have been negligent if the following circumstances are present:
He/she has acted in a way that is different from what other colleagues would do, i.e. malpractice.
He has acted imprudently by not adequately assessing the risks and without taking the patient into account, i.e., without respecting the 'lex artis'.
As a consequence of any of these actions, an injury or damage has been caused to the patient, whether physical, aesthetic or psychological.
And there would be no liability or negligence, if:
Harm has been caused to the patient, but the physician does not engage in malpractice.
The doctor commits some malpractice, but acts prudently, complying with the lex artis.
The medical malpractice claims procedure
Medical malpractice claims are possibly the most difficult to bring successfully. The fundamental reason is that the injured patient has to be able to prove that his or her injury stems directly from the doctor's actions.
So how do you claim for medical malpractice? It is necessary to have recourse to a medical expert, who must produce a forensic-type report to help judges or courts discern whether the doctor's conduct was correct.
Beforehand, it is necessary to have a lawyer specialising in medical claims to gather all the documentation needed to assess whether or not a claim can be made.
If a medical malpractice claim is found to be appropriate, it can be brought in one of three jurisdictions:
Civil: if the malpractice occurred in a private hospital, centre or practice.
Contentious-administrative: if the negligence has taken place in a public hospital, centre or clinic and allows a claim for compensation for the administration's financial liability.
Criminal: if the damage is so serious that it can be classified as a crime. For example, if the consequence has been the injury of a foetus or the death of the patient.
In any case, the essential issue is the ability to prove the doctor's liability reliably and to explain it in a well-argued way.
The best advice in this regard is to have a lawyer who specialises in this area, to ensure that the claim runs its course with a chance of success.
If you suspect that you have been the victim of medical malpractice, do not hesitate to contact our medical malpractice law firm. Our highly skilled team will be happy to help you obtain justice and compensation for the harm you have suffered. Contact us today to schedule a free initial consultation to discuss your case in detail. Thank you for reading!