One of the main doubts that our clients ask us as medical negligence lawyers, are those that may arise after receiving health care whose evolution or results have not been as expected, according to the information that medical professionals had previously provided us, It is to think that perhaps this action has constituted medical negligence because things have not been done in accordance with the protocols that guide the correct behavior of the doctors.
It is true that the advancement of medicine in the last century has gone from an almost exclusive relationship with the general practitioner to a much more complex and structured relationship with teams of specialists who treat very specific ailments, something to which the rise of social policies and the welfare state.
In addition, patients today have direct access to numerous information about diseases and pathologies at the click of a mouse, which has determined that the blind trust that was previously held in what the doctor said, is nowadays frequently questioned ( the same happens with many other professions: lawyers, architects, etc.).
This is a double-edged sword:
On the one hand, it is positive because it allows the information to expand and be accessible,
but on the other, it is still negative, since in many cases unreliable sources are consulted, or there is a risk that the patient will begin to self-diagnose and believe that they have the same knowledge and skills as the doctor, which is a serious problem. error.
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Compensation claims for medical negligence
Well, in this social context, claims for medical negligence are undoubtedly on the rise. Through this article we intend to give a series of guidelines about when we can really be faced with medical negligence and when not, since it is also verified that there is a tendency to confuse unwanted results or negative evolutions with medical negligence.
The provision of means and not results in medical practice
It should be noted that in order to detect medical negligence, it must be borne in mind that the obligation of health workers is one of means and not of result.
This means that in order to identify medical malpractice, the focus must be on the performance of the health professional (doctor, nurse, physiotherapist, etc.) and not so much on the result produced (the result is important, but above all with regard to establish the quantification of the damages caused).
It is true that the negative result of a treatment or surgical intervention that initially should have improved our ailments, may be a first indication that something has not gone well and that the fact that it has not been successful may be due to the behavior of the patient. doctor, giving rise to a lawsuit for civil liability.
However, as we pointed out, what can never be equated is a bad result with medical negligence. It may be that the physician’s actions have been impeccable from a professional point of view and that, despite this, due to other unpredictable factors or that are beyond the doctor’s control, the result has not been as expected, something quite common in the field of human health.
It may also happen that the doctor has made an error, but that it is not of the necessary entity to be considered negligent or even that his conduct has been negligent, but that, fortunately, he has not caused any damage so nothing can be done. can claim for not having caused harm to the patient.
Only when the medical professional has departed from the lex artis, that is, from the criteria that guide what the doctor’s conduct must be according to the circumstances known to him, can his responsibility arise.
Throughout this article we will go through examples that can help to identify medical negligence, since they constitute frequent or typical cases in which the courts have appreciated (as long as all the requirements have been proven) health responsibility. Lack of informed consent
One of the most frequent cases of medical negligence is the one that refers to the lack of informed consent.
Informed consent is based on the autonomy of the patient, it is considered that it is not possible to intervene in the health of a person by subjecting him to medical treatment without his prior consent (except in cases of extreme urgency in which it is impossible to request and provide consent due to the person being unconscious, being at vital risk, etc.).
However, for the patient’s consent to be valid, it is a professional duty of the doctor (and therefore it is a rule of the lex artis), to inform about the characteristics of the treatment, its risks and the degree of possibilities that they occur. (statistics), of the benefits and results that are intended to be obtained through it, of its side effects, of the possible therapeutic alternatives or the absence of them, of the perspectives in case of not being carried out.
The Courts have insisted that the provision of information cannot require a mere bureaucratic formalism, but that it is an essential duty of the doctor and to which the necessary time must be devoted. We all know of cases in which a pre-written document is presented moments before entering the operating room and without the patient having been able to reflect on the risks he faces, which obviously constitutes malpractice.
For this reason, it is necessary that the patient be informed sufficiently in advance, in a clear and understandable language, regardless of whether it is in private healthcare or in public healthcare.
What is informed consent?
The risk information
Normally, the patient is given a document that includes the information to which we have referred. Regarding the risks, it is important to include not only the generic or typical risks that may occur in a certain treatment, but also the personalized ones, that is, those that, in view of our state of health and medical history, are more likely to occur ( It is not the same to submit a certain operation to a child, than to a young person in good general health, to an elderly person with numerous ailments, etc.).
Risk information in satisfactory medicine
This duty of transparency is accentuated in the cases of the so-called satisfactory medicine, that is, that which affects our health, but which does not have a curative purpose, but responds to a patient’s wish.
We are referring, for example, to undergoing in vitro fertilization treatment or others related to sexual or reproductive health such as vasectomy or tubal ligation, or cosmetic surgery operations such as breast augmentation, liposuction, hair implants , laser hair removal, etc.
In these cases, since it is not a question of fighting a disease, but of obtaining a result desired by the patient (having a child, improvement of physical appearance), it is essential that the patient knows perfectly the undesirable consequences that can be derived from the treatment.
Who should be informed
In cases where the patient is a minor or is incapable of giving consent (due to suffering from a psychiatric illness that prevents him from doing so or being unconscious, etc.), the consent of the parents or representatives of the minor or of the parents must be obtained. relatives of the incapacitated person to do so.
The different Spanish medical societies (cardiology, oncology, digestive, gynecology and obstetrics, traumatology, pediatrics, etc.) usually make informed consent models available to professionals for different interventions or treatments that include a full information about them. These same models are sometimes accessible to the general public through their web pages.
In short, it is about informing the patient in an understandable way of the incidence that a certain treatment can have on her health so that he can give consent knowing what to expect.
Is there medical negligence in case of not having any document of informed consent?
If you were not provided with any informed consent document, nor were you made to sign any document of that nature or if the one you were given was concise and incomplete or did not include the risks that subsequently occurred, it is possible that you have suffered medical negligence derived from a lack of of informed consent.
emergency assistance
As its name suggests, if something characterizes the emergency department, it is that those who come to it require immediate medical attention and diagnostic guidance on the symptoms they suffer from.
Upon arrival at the emergency room, it is time for triage or determination of the degree of priority in the care that the patient presents in view of his condition and the symptoms he shows.
Delays in emergency services
Sometimes it is frequent that there are saturated emergency services that cause delays in care. For this reason, it is vitally important to carry out a correct triage to ensure that the patient’s health will not suffer if they have to wait for a more or less prolonged time.
However, when due care has not been provided or the patient has been classified incorrectly in such a way that care is delayed and as a consequence care arrives late, when irreparable damage has already occurred (which could have been remedied if the attention had been early), we may be facing medical negligence.
Medical negligence due to delays in diagnosis in the ER
Another of the cases that can frequently occur in the Emergency services is that complementary tests (analytics, cultures, imaging tests) that determine or complete the diagnosis are not performed, discharging the patient without having exhausted the tests that the protocols they demand.
There are multiple guidelines for the clinical management of symptoms in emergency care that provide for the tests to be carried out in the face of the different symptoms that a patient may present.
It must be taken into account that patients with the most diverse symptoms arrive at the emergency room of a medical center, so the physicians who attend such a service must know how to discriminate the severity, type, risks, etc., of the situation in front of them. .
It is obvious that the emergency physician cannot be asked to be infallible in diagnosis and treatment, but he must be especially diligent in evaluating the severity of the symptoms.
When there is suspicion of defective assistance in the ER, these protocols should be consulted to determine if the assistance provided was in accordance with the lex artis.
Diagnostic delays such as medical negligence
Sometimes reaching the correct diagnosis of a disease is a complex procedure because there are coincident symptoms in many pathologies, which makes it necessary to carry out different tests to rule out until a correct diagnosis is found.
It is common for the effectiveness of a treatment to depend on an early diagnosis (for example, in cases of cancer, intestinal obstruction, stroke), so that in the face of certain symptomatic pictures, a certain “path” of tests must be followed. from analytical tests, x-rays, ultrasounds, CT scans, magnetic resonances, endoscopies, biopsies, etc.
The doctor’s attitude must be balanced between requesting less invasive tests (normally, a biopsy is not considered from the outset), but taking into account the existence of symptoms or history (personal, family) whose combination alarms about some disease serious and must be ruled out quickly.
There are cases in which several physicians or the system itself contribute to the delay and the wait until a specialist doctor is seen. Thus, it may be conditioned by the fact that the primary care physician is late in referring a specialist, and that once referred, the specialist does not prescribe the pertinent test, thus lengthening the time to obtain a diagnosis.
The importance of medical protocols
To try to guide professionals on this path, we have already alluded to the importance of clinical protocols. If the professional did not schedule the pertinent tests or did not schedule them with due urgency or did not carry out an adequate follow-up of the patient and as a consequence, the disease is diagnosed in an advanced phase that prevents or limits the success of the treatment that can be used, it may The doctor can be held responsible for the loss of opportunity caused to the patient.
The delay in diagnosis and the concept of lost opportunity in medical negligence
This loss of opportunity is a doctrine developed by the Courts that imputes responsibility to the professional, based on the hypothesis that, if action had been taken in time, the damages would not have occurred or they would be minor. It is applied in cases of causal uncertainty in which we cannot be certain that if we had proceeded in accordance with the lex artis, the damage would not have occurred, but we can affirm that the patient’s defense possibilities have been reduced, this is, you have been placed in a more disadvantageous situation compared to the disease that affects you.
In such cases, it is advisable to contact a lawyer specializing in medical negligence in order to determine the feasibility of a claim for medical negligence, since not all delays affect the same way (in some cases, we can say that a delay of a few hours can be fundamental, while in other cases the delay that generates loss of opportunity can be months or years).
Medical malpractice as a cause of medical negligence
Another of the cases that can give rise to medical negligence are those in which there is a poor technical execution of a certain intervention, forgetting the required precautions, misusing the material, making gross and obvious errors, etc. Such assumptions are usually included under the term of professional malpractice.
Professional incompetence is usually associated with a lack of experience in carrying out a certain intervention, but it can also refer to an outdated advance in medicine in a specific branch or a lack of necessary attention.
Where we will talk about malpractice most frequently will be in relation to surgical interventions or performance of certain tests (colonoscopy, gastroscopy, etc.)
Differences between malpractice and surgical complication
The distinction between cases of malpractice and those of surgical complication or technical failure must be kept in mind. Today, the degree of development reached by surgery allows very delicate and complex interventions to be carried out, in which it is difficult to speak of malpractice, since the rates of failure or poor results are high, without this being able to responsibility must be demanded from the doctor who informed about the complexity of the operation.
Conversely, the simpler or protocolized an intervention is and it is proven that in the vast majority of cases it is performed without complications (an appendectomy, for example), the more room there will be for poor results in this type of operation to be due to malpractice or bad execution.
One can also speak of incompetence when an elemental forgetfulness occurs during the intervention and some foreign body (gauzes, surgical instruments) is left inside the patient, a situation that is not as unusual as one might think.
Another assumption would consist of more obvious mistakes such as operating on the left hand when the lesion is on the right, implanting material belonging to another patient (intraocular lenses, prostheses, dental implants, etc.). Certainly the latter are difficult to produce, but occasionally they do occur.
Treatment errors such as medical negligence
Related to the latter, it is also possible to speak of treatment errors. Errors can be in the person when a treatment is prescribed that the patient does not require. Normally we refer to a poor coordination of the center due to confusion of medical records so that one patient is administered the drugs indicated for another, or a test is performed that was not prescribed.
Obviously, in these cases, liability can only be demanded when that error has caused significant damage. In the event that the damages are insignificant or the error is innocuous (for example, taking a blood sample from a patient by mistake), it will only be possible to file a complaint with the hospital or with the patient’s advocate, but not request compensation for damages, with patrimonial responsibility.
In other cases, one can also speak of a treatment error when, although there is no error in the identification of the patient or in the medical history, the therapeutic option required by the circumstances is not taken, for example, the delay in performing a cesarean section when it becomes evident. a situation of fetal distress, that is, when a specific treatment has been started and in view of its failure, other medical procedures that may be more effective and avoid an unfavorable outcome are not started on time.
This second class of treatment errors is a broader category in which cases of care delays, lack of skill, failure to carry out tests, poor interpretation of symptoms, etc., could also enter.
Intrahospital infections or infections as medical negligence
It is also a common source of medical liability that derived from so-called nosocomial or intrahospital infections, that is, when the infection occurs when the patient was admitted to the hospital for a different reason, presuming that the infection has occurred due to a fault of asepsis or hygiene.
The most frequent affect the respiratory tract, the urinary tract and surgical wounds. Nosocomial infection rates in our country are around 5 and 7%.
It must be possible to demonstrate the intrahospital origin of the infection, that is, that it was not incubating prior to admission or that the bacteria or germ detected could only be contracted in the hospital and not, for example, from someone who visited the patient during Your income.
Hospital cleaning protocols
In these cases, it will be necessary to examine the cleaning protocols of the center, of the operating rooms, the adequate sterilization of the instruments, the isolation of patients susceptible to infecting others, or those who are immunosuppressed, etc. Many times the Courts understand that the mere fact that the infection has occurred already demonstrates a break in the “chain of asepsis” that the hospital center must guarantee.
The hospital patient as a consumer
It should not be forgotten that the patient is protected, as a user, by consumer and user protection regulations and that article 148 of Legislative RD 1/2007, which approves the consolidated text of the General Law for the Defense of Consumers and Users, subjects health services to a liability regime for damages caused by the correct use of such services.
This regulation is applied regardless of the public or private nature of the center, therefore, public hospitals are also subject to the levels of safety and efficacy required by art. 148 which expressly refers to health services.
Therefore, in the event of having suffered an intrahospital infection that has caused significant damage, it is advisable to take the case before a specialist lawyer.
Disproportionate damage such as medical negligence
Another of the cases that can put us on the trail of medical negligence is in cases where disproportionate damage occurs, that is, it does not correspond to the expected or usual risks of a certain operation or treatment.
With this he wants to refer to situations that do not find a priori a logical explanation from the medical point of view, which suggests that there has been negligence. In these cases, it is the physician who is responsible for explaining that his actions were in accordance with the lex artis.
Let us think, for example, of a person who is going to undergo a relatively simple and common operation, such as the extraction of a tooth or a cataract operation, and after that a spinal cord injury occurs and they are confined to a wheelchair.
It is clear that paraplegia is not one of the risks that in principle we would associate with such interventions. As there is an obvious disproportion or even a disconnection between the type of intervention and the result produced, it is up to the professional to explain that it was produced for reasons unrelated to their actions if they want to avoid responsibility for them.
This doctrine inverts the burden of proof, it will no longer be the patient who will have to prove that the damage suffered is due to the actions of the doctor, but the latter will be the one who must demonstrate that his actions were impeccable from the point of view of view of professional action and did not cause the damages that are attributed to it.
For this reason, if damage has been suffered that is in principle incompatible with the treatment followed, it is worth checking whether it falls within the doctrine of disproportionate damage.
Expert viability as medical negligence
As can be seen, if something characterizes medical negligence it is its casuism, since we can find the most varied assumptions. The examples that have been given throughout this article do not exhaust, by far, the typology of medical negligence that can be found in the jurisprudence of our Courts.
New surgical techniques, the development of drugs, vaccines, prosthesis material, orthosis or osteosynthesis contribute to an evolution in terms of new cases of health responsibility that were unthinkable a few years ago.
The Importance of Medical History in a Medical Malpractice Claim
In any case, if you have suffered a situation similar to those described (which we understand are still the most common in practice) the next step is to claim the entire medical history from the center or centers where the treatment was received.
It must be taken into account that access to the medical history is a patient’s right included in article 18 of Law 41/2002, regulating patient autonomy, so the center cannot refuse to deliver it. However, sometimes, they are reluctant to deliver it or do not deliver it completely, so it is necessary to go to a judicial procedure called Preliminary Proceedings so that a Judge is the one who forces the center to deliver the clinical history.
Sometimes, the refusal to deliver the medical history, the questions about what it is wanted for or the refusal of the doctors to give explanations of the reason for a negative result, can be indications that some medical negligence may have been committed.
The clinical history must include not only the doctor’s reports, but also the evolutionary or clinical courses, surgical sheets, nursing sheets, analytical tests, imaging tests, informed consent, etc.
It is essential to gather this documentation in order to be able to analyze whether there has been malpractice, since it, together with the medical expert report, will be the fundamental evidence on which to base the responsibility of the physician.
The importance of having a lawyer specializing in medical negligence
Next, it is advisable to go to a law firm specialized in medical negligence such as Toro Pujol Abogados to guide us on the procedure to follow and to obtain a medical-legal assessment of the viability of the case.
This means that the medical documentation will be forwarded to a medical expert who will review it and issue an opinion as to the chances of success of the claim. Likewise, the lawyers will examine, from a legal point of view, the jurisprudence that may have fallen on similar matters and that serves as a guide to observe the arguments that lead the Court to uphold or dismiss the claim, as well as related aspects, for example . with the limitation periods or the channels for judicial and extrajudicial claims.
This step is one of the fundamental ones because on many occasions we find patients who are convinced that they have suffered medical negligence, but it may happen that this is not the case or that their claim is not viable for various reasons, for example:
that the doctor adjust his actions to what the protocols establish and the unfavorable result is not attributable to him;
that negligence cannot be proven from the examination of the clinical history because it is not collected or deductible from other tests, being the patient’s word against the doctor’s;
that there could have been negligence, but that the main cause of the damage produced is a different one;
that there has been some failure or medical error, but that it falls within the norm and is not of sufficient importance to speak of negligence;
that the action has been negligent, but has not caused damage or the damage caused is so minor that it is not economical to claim it, taking into account the costs involved in a claim for negligence (lawyers, expert, solicitor)
However, if the result of the feasibility analysis is positive, the claim for the damages caused may be initiated. In another article we will refer more fully to the steps to take in the event that medical negligence has been suffered to try to compensate in some way for the damage caused.