Clinical negligence: a Spanish perspective
An association representing the interests of patients, “El defensor del paciente” provides some statistics. According to its 2015 report, there had been a slight decline compared to the previous year, although the data was similar: 14,430 cases were processed, of which 806 resulted in death.
The claims are generally against medical professionals, in particular neurosurgeons, obstetricians and gynaecologists, traumatologists and oral, maxillofacial and plastic surgeons. However, in many cases claims are brought not only against the medical professional but also against healthcare providers and insurers.
Spanish legislation regulates the extent of corporate responsibility:
“…the owners or managers of an establishment or undertaking shall be liable for damages caused by their employees, in the service in which they are employed or in the performance of their duties.”
On this basis, case law has held that, in order to establish responsibility on the part of a healthcare provider for a medical act, there must be an employer-employee relationship between it and the negligent doctor. The Supreme Court has also established that:
“…it is a direct liability and not residual liability that can be directly demanded of the employer for their own failure “in vigilando” [watching] or “in eligendo” [choosing] and it is independent of the liability that the author of the act may incur.”
Articles 105 and 106 of the Spanish Insurance Contract Act 1980 distinguish two types of insurance:
- Health insurance, which compels the insurer to pay certain amounts for medical assistance and pharmaceutical costs to outside providers.
- Healthcare insurance, in which the insurer assumes the provision of medical services that it may, or may not, directly provide.
In Spain, the predominant type of private healthcare insurance is that where medical assistance is not provided directly by the insurer but by a panel of medical service providers and medical centres.
Case law regarding the liability of healthcare insurers for medical acts has been established over time in a fairly unclear and non-uniform manner, with reference to the following criteria:
- Insurers that assume direct provision of healthcare services will be contractually liable for the actions of their doctors, on the basis that there is an employer-employee relationship between the insurer and the doctors.
- Insurers that do not directly provide healthcare services will be liable for the actions of their doctors when an employer-employee relationship has arisen, for instance, when the insurer directly assigns a doctor or there is direct intervention by the insurer in the performance of the doctors.
- Another criteria is the principle of appearance: if the medical professionals or medical centres appear to be employed by the insurer, the contractual obligations of the insurer, and its responsibility, are amplified.
- Also taken into consideration are specific guarantees of correct attention to the patient contained in insurance contracts. In these cases, the obligations of the insurer go further than mere administrative management and they turn into guarantees of services provided.
- Case law has also determined that the characteristic obligation of the insurers is the very provision of medical care, implying that the doctors, and centres, that provide medical services to the insureds are ‘auxiliaries’ of the insurer in the performing of their contractual duties. This being the case, the insurer will respond for their actions.
As can be seen, the insured is in a position where they can choose between demanding:
- Non-contractual liability from the medical professional or healthcare provider, and/or
- Contractual liability from the healthcare insurer.
The Spanish judicial system is flexible in that it permits a victim of clinical negligence to bring a legal action against one or all of the possible liable parties, with a relatively ample limitation period. The limitation period can easily be extended by a simple letter and without much formality.
These factors have provoked an increase in clinical negligence lawsuits in Spain over recent years. A change to the way that injuries are valued will also lead to even greater amounts of compensation being paid.