On November 25th, the world was shocked by the news of the death of Diego Armando Maradona, arguably the greatest football player in our history. Beyond the eternal debate over whether the excesses in the life of this sports legend should affect his image - discussions that continue to dominate our sports media today - let's briefly analyze the potential medical negligence responsibility of the physicians who attended to the former player in his final hours.
There is speculation in Argentina about possible negligent homicide charges against his personal physician, Dr. Leopoldo Duque, and his psychiatrist, Dr. Agustina Cosachov. Law enforcement authorities even conducted a search and seizure at the personal residences of both healthcare professionals to gather evidence for the investigation that has led to their indictment in the criminal case opened to investigate and determine possible liabilities. It is noteworthy that in our country, it is very uncommon - rather unusual - for an investigating judge to order or for a prosecutor to request a search and seizure in a case involving negligent homicide due to professional medical negligence.
However, in Spain, it is quite common to investigate cases involving deaths or injuries due to medical negligence. Our Penal Code regulates negligent homicide under Article 142, with penalties of up to 4 years in prison and professional disqualification for up to 6 years.
In Maradona's case, everything points to an investigation into the treatment the Argentine star received at home and the methods used in his care as a dependent patient; post-surgical recommendations following his operation; instructions provided by the psychiatrist; the possibility of premature discharge from the medical center; etc.
At this point, it is always important to remember that the principle of ultima ratio in criminal law should prevail. Therefore, in our country, diagnostic errors or delays are usually more within the jurisdiction of civil or administrative law - except for blatant errors - (STS, Second Chamber, 782/2006 of July 6, 2006, Rec. 1917/2005), as well as mere lack of information in treatment (ruling of the Provincial Court of Toledo, Second Section, no. 77/2011 of March 15, 2011, Rec. 57/2010).
Anyone involved in defending medical negligence could anticipate that in this death, doctors would be under scrutiny, as blame would be sought; forgetting that many deaths are solely due to tragic and fortuitous causes, especially in patients with multiple pathologies who have undergone significant surgeries.
In conclusion, the investigation will have to determine whether there is evidence to prove that reckless action or omission by any of the physicians caused the death. For now, news related to the Argentine sportsman will dominate our headlines, unfairly pointing to the doctors who treated him as presumed guilty and ignoring the principle of innocence presumption of the healthcare professionals under investigation. Rest in peace, Diego.
Ignacio Montoro Iturbe-Ormaeche
