Ignacio Montoro Iturbe-Ormaeche | Managing Partner at Summons and Director of Litigation
Diario La Ley, No. 9320, Tribune Section, December 18, 2018, Wolters Kluwer Editorial
LA LEY 14043/2018
Legislation commented upon
L 1/2000 of January 7 (Civil Procedure Law)
BOOK II. Declarative Processes
TITLE I. Common provisions for declarative processes
CHAPTER VI. Means of evidence and presumptions
SECTION 5. EXPERT REPORTS
Article 339. Request for appointment of experts by the court and judicial resolution on such request. Appointment of experts by the court, without the involvement of parties.
L 50/1980 of October 8 (insurance contract)
FIRST TITLE
THIRD SECTION. Obligations and duties of the parties
Article 20
Case law commented upon
Supreme Court, Conflict of Jurisdiction Chamber, A 14/2010, June 24, 2010 (Rec. 6/2010)
Supreme Court, Criminal Chamber, S 782/2006, July 6, 2006 (Rec. 1917/2005)
APTO, Section 2, A 77/2011, March 15, 2011 (Rec. 57/2010)
Comments
Summary
The purpose of this article is to identify the most common errors observed in medical negligence claims by attorneys after years of defending healthcare professionals—physicians, hospitals, and insurers—many of which often lead to the failure of cases.
Misuse of jurisdiction
It often happens that some patient attorneys abuse criminal jurisdiction as a means to claim damages resulting from alleged medical negligence.
Criminal jurisdiction is reserved for the most serious and flagrant cases of medical negligence
In this regard, it is important to note that jurisprudential doctrine is clear: criminal jurisdiction is reserved for the most serious and flagrant cases of medical negligence, and not every fault has criminal relevance. Therefore, outside of these cases, criminal jurisdiction likely only adds unnecessary delays to achieving the main objective, which is compensating the client for damages.
It is common to see years of instructions with numerous investigative diligences and appeals, only to end in dismissal and closure of the case, without even starting negotiations with insurers for civil liability, resulting in financial loss and wasted time for the client, and a likely loss of trust in their attorney.
At this point, many cases continue to be brought before criminal jurisdiction solely on the grounds of lack of information, when jurisprudence has clarified on numerous occasions that the absence of signed informed consent does not constitute an element of criminal imprudence.
For example, the ruling of the Provincial Court of Toledo, Section 2, No. 77/2011 of March 15, 2011, Rec. 57/2010 (LA LEY 60451/2011) states that: "the breach of this duty of adequate information cannot transform the conduct of the accused into a criminal offense. What this Court never doubts is that we are not dealing with a criminal offense under any hypothesis."
It is also common to file complaints or lawsuits solely on the grounds of a delay or diagnostic error, when jurisprudence has clarified on many occasions that diagnostic errors or delays fall under civil liability, not criminal negligence except for glaring diagnostic errors. The Supreme Court's jurisprudence has clarified this issue for years, highlighting the ruling of the Supreme Court, Second Chamber, 782/2006 of July 6, 2006, Rec. 1917/2005 (LA LEY 77516/2006) (LA LEY 77516/2006) which states that:
"According to repeated jurisprudence regarding medical negligence: a) it is not possible to incriminate a simple scientific error or incorrect diagnosis as a crime, except when qualitatively or quantitatively it results in extreme seriousness."
Similarly, errors are also made in the use of civil and administrative litigation jurisdiction for certain cases of medical negligence.
A quite common case—with varying outcomes in our case law—arises when healthcare has been provided by medical services of the Mutuas with agreements with the National Health System. In this case, the ruling of the Supreme Court, Conflict of Jurisdiction Chamber, 14/2010 of June 24, 2010, Rec. 6/2010 (LA LEY 128637/2010) (LA LEY 128637/2010) indicates that:
"... we have declared the competence of the Administrative Litigation Jurisdiction to hear claims for damages resulting from healthcare provided by the medical services of the Mutuas, despite their private nature, because what determines the attribution of jurisdiction in these cases, as previously stated, is the nature of the healthcare as part of the services integrated into the National Health System and therefore under the responsibility of public authorities, even though management is carried out through agreements with private entities."
Issues with defendants
Another problem that often arises when filing a claim for medical negligence is determining the defendants of the action, i.e., against whom the legal action is directed more problematic in civil cases due to the feared legal costs.
I have seen lawsuits filed against professionals who were not involved in the claimed medical action or omission
After years of defending healthcare professionals, I have observed numerous errors in the filing of lawsuits, even filing lawsuits against professionals who were not involved in the alleged medical action or omission, and thus had no responsibility for the negligence.
Regarding this error, I recall a case that caught my attention some years ago. A lawsuit was filed against a surgeon who was a client of the firm, and it was evident that our client had no relation whatsoever with the patient, nor had he even attended to him, although he was part of the medical team that treated him.
Indeed, his lack of responsibility was so blatant that before responding to the lawsuit, I called the patient's lawyer out of courtesy and pointed out his error, in case she decided to drop the action against my client co-defendant and remove him from the proceeding. Her response was no less surprising: "You have to prove to me that your client did not participate in the operation." Of course, I did not argue, I responded to the lawsuit, and the colleague withdrew during the preliminary hearing after the response to the lawsuit, although they were condemned to substantial costs.
At this point, my advice is to carefully analyze the case and documentation—medical history, contracts, etc.—and if there are doubts about the involvement of any professional in the cause, or doubts about the nature of their possible liability—contractual vs. tort liability—direct the action against the individual or individuals with whom we are sure have responsibility and a relationship with the patient—usually the medical center and its insurer as joint contractual responsible parties—and these joint responsible parties can defend against other potential defendants in a subsequent lawsuit if they so decide without prejudice to the likely allegation of lack of necessary passive joinder, which in my experience, does not usually succeed.
III. Medical Experts
Lack of knowledge or experience
Another very common error is using medical experts without knowledge in the subject matter or expertise in expertise.
Many times, lawsuits are filed with reports from non-specialist experts to assess medical practice, i.e., whether the physician's actions were in accordance with the lex artis ad hoc.
It is important to understand that in any case of professional civil liability, in addition to proving the damage and causal relationship, negligence must be proven, and the appropriate professionals are specialist doctors in the field to be examined. Note that Article 62.4 of the Code of Medical Deontology of the General Council of Official Medical Colleges of 2011 provides:
"The physician must not accept a medical assessment for which they do not have professional qualification or if they are not willing to defend it in the oral trial. If forced to do so, they are entitled to claim the objection of science."
Therefore, it is not advisable to go to trial with an expert specializing in bodily injury assessment who also evaluates medical practice when it is not their specialty, as the defendant can present an expert opinion from a specialist, which is likely to carry more weight in court.
The lack of specialization of experts is one of the biggest mistakes when initiating a medical negligence action.
Likewise, another common error is entrusting the expertise to a healthcare professional without experience in expert work, often because they are a friend or acquaintance of the client or lawyer, clearly showing their lack of experience in drafting the report and subsequent ratification in court. Therefore, although no rule explicitly requires training to be qualified as an expert in litigation, it is highly recommended that the expert involved has experience, as clinical experience alone prepares one to be a good healthcare provider, but does not provide the knowledge to perform expert work.
Announcement of judicial expertise
Another error sometimes observed is the failure to announce the designation of a judicial expert in the lawsuit in accordance with Article 339 of Law 1/2000, of January 7, Civil Procedure Law (LA LEY 58/2000)—hereinafter LEC—(LA LEY 58/2000), in cases where the claimant is entitled to legal aid and wants the court to appoint an expert, closing the deadline after filing the lawsuit without prior announcement—without prejudice to what is established in Article 339.3 LEC (LA LEY 58/2000)—.
Moreover, when requesting a judicial expertise, it is advisable to specify, among other things:
Type of expert opinion requested. Expert who should carry it out. Issues on which the expert opinion should focus. In my opinion, given the technical level and complexity of a medical negligence claim, it is equally important to prepare a case well in the pre-litigation phase —check that the medical records are complete, choose the right experts, prepare the documents to be submitted, etc.— as it is to conduct the trial evidence in the hearing.
Incorrect application of legal arguments The burden of proof Although some readers may be surprised, it is common for the defenses of claimants to continue to confuse the legal obligation to prove negligence lies with the claiming party.
Obviously, not only in criminal jurisdiction will it be the responsibility of the accusers to prove the guilt of the active subject, but also in civil and administrative jurisdiction.
Article 217.2 LEC (LA LEY 58/2000) determines that the burden of proof lies with the plaintiff, and case law generally rules out reversing the burden of proof in civil jurisdiction —See on this issue STS Sala 1ª n.o 357/2011 (LA LEY 71522/2011) of June 1, 2011, Rec. 791/2008 (LA LEY 71522/2011)—.
Also in the administrative jurisdiction, although it is moderated to a greater extent by the application of the theory of ease and proximity of proof —See for example STS Sala 3ª Section 4ª, June 14, 2011, Rec. 2371/2007 (LA LEY 72244/2011)—.
Subjective liability and the obligation of means of the professional Many claims continue to apply outdated case law, insisting that in certain medical or dental treatments liability is objective and the obligation of result applies, despite the fact that the Supreme Court has repeatedly applied subjective liability and the obligation of means, not being able to guarantee and respond to the result. — See STS Sala 1ª n.o 250/2016 (LA LEY 29691/2016) of April 13, 2016, Rec. 2237/2014 (LA LEY 29691/2016)—.
The theory of disproportionate damage Another common mistake is to allege by default the theory of disproportionate damage to any civil issue alleging medical negligence. On many occasions, claiming lawyers insist on the application of the theory of disproportionate damage in an attempt to reverse the burden of proof. However, case law is clear and has pointed out that it is not appropriate to allege the theory of disproportionate damage for every medical case that results in harm, so it will be the claiming party that must prove negligence —See on this issue STS Tribunal Supremo, Sala Primera, n.o 240/2016 of April 12, 2016, Rec. 618/2014 (LA LEY 29680/2016)—.
Consumer and User Law In many claims, Royal Decree-Law 1/2007, of November 16, approving the Revised Text of the General Law for the Defense of Consumers and Users (LA LEY 11922/2007) and other complementary laws (LA LEY 11922/2007), is also applied by default, when it is clear in our civil case law that this regulation does not apply to claims for medical negligence in general. At this point, STS Sala 1ª, n.o 333/2012 of May 18, 2012, Rec. 2002/2009 (LA LEY 58433/2012) stands out:
"According to the most recent case law, given its specific nature, this type of liability does not affect medical acts themselves, since they inherently involve applying responsibility criteria based on negligence due to non-compliance with the lex artis ad hoc. Consequently, liability established by consumer legislation only applies in relation to organizational or service provision aspects of health services, unrelated to the medical activity itself".
Incorrect assessment of damages and losses As is well known, in matters other than injuries resulting from motor vehicle accidents, the damage assessment system provided for in both the old and the new "traffic scale" of Royal Decree-Law 8/2004, of October 29 (LA LEY 1459/2004), approving the Revised Text of the Law on Civil Liability and Insurance in Motor Vehicle Traffic (LA LEY 1459/2004) (LA LEY 1459/2004), has always been indicative, never binding, leaving it to the discretion of the Court to apply it to the specific case. — See for example STS Sala Primera Rec. 1459/2013 (LA LEY 79948/2015); STS Sala Segunda Rec. 2423/2001 (LA LEY 16283/2003); STS Sala Tercera Rec. 596/2002 (LA LEY 10867/2006); STS Sala Cuarta Rec. 1219/2014 (LA LEY 21319/2015)—.
However, the reality is that this scale is usually applied as indicative in claims for medical negligence. Well, it is very common for errors to occur in the quantification of the damage in claims made by the defenses of patients. In my opinion, the most common errors are as follows:
- a) Flat-rate quantifications. Many times claims are received with flat-rate quantifications made by the patient's lawyer, without the support of an expert specialist in bodily injury assessment, so opposing lawyers and their experts will find it very easy to rebut the damage quantification made by the opposing lawyer, given that they are neither doctors nor specialists in damage assessment.
Likewise, I have also observed cases in which even with a forensic report or a report from a judicial expert assessing the injuries, surprisingly, there is no proper economic quantification of the damage.
- b) Lack of evidence on emergent damages and loss of profits. It often happens that very large amounts of certain items such as emergent damages and loss of profits are claimed, but no documentary evidence is provided, so they are usually dismissed.
- c) Inclusion or exclusion of items without logical criteria. Similarly, it is quite common that even when a specialist expert in bodily injury assessment is appointed, items from the scale are included without justification or substantiated in medical reports. It also often happens that the opposite occurs; items that could have been included as damages to be claimed are excluded.
Therefore, in my opinion, it is essential to have good specialist experts in bodily injury assessment for the success of a claim.
Errors in defense strategy Another common mistake is the incorrect planning of defense arguments to be used in the claim. It often happens that patient's lawyers focus excessively on issues that are easily defensible by healthcare defenses, and forget about issues where they could achieve better results, i.e., they do not focus correctly.
Thus, it is very common for the defenses of the injured parties to insist almost solely on issues of information missing under Law 41/2002, of November 14, on the basic regulation of patient autonomy and rights and obligations in matters of information and clinical documentation (LA LEY 1580/2002), when the patient has signed the informed consent and the information provided is proven.
Well, often defenses forget more important elements such as errors in treatment planning, execution of the technique, or follow-up postoperative care, issues that could lead to the success of the claim, and focus solely and exclusively on the alleged lack of information.
VII. Defects in documentation
Another recurring error is that claims lack relevant documentation to judge the case and prove professional negligence. It is important that when filing a claim, all relevant documentation of the case is obtained, which means obtaining the complete medical history —all medical reports, informed consents, X-rays, etc.— both to analyze the cause by the lawyer and by the experts who will produce the expert report.
It is still very common to see claims that do not provide the complete medical history, and with the submission of new documentation by the defenses of healthcare professionals, they "knock down" the allegations of the claim, as they contain information not considered in the claim —and with which possibly the judicial claim would not have been made—, with the risk of an unfavorable ruling and costs.
It also often happens that the plaintiff's own experts have not been able to access documentation provided by the defenses along with their response, so they have not been able to include these documents as sources in their report, and the expert opinion remains incomplete, with the consequent loss of probative value and even surprise of the experts when in full trial they become aware of relevant documentation of which they had no knowledge.
Claimants often file claims without obtaining the complete medical history
This happens because claimants often file claims without obtaining the complete medical history, which can be requested by registered mail to the healthcare center —generally responsible for the custody of the medical history—, or if not obtained by this means —strangely it happens on occasions—, a preliminary proceedings demand must be filed in the civil procedure ex art. 256 LEC (LA LEY 58/2000).
In administrative proceedings, it is sufficient to request in the patrimonial claim the submission to the procedure of a copy of the complete medical history if it has not been obtained previously.
In criminal jurisdiction —reserved for very specific cases as indicated— when the medical history is not available after requesting it from the center, it must be requested in the complaint or lawsuit by a subsequent motion to be sent an official request to the medical centers to provide such documentation.
In conclusion, my advice is not to rush to file a judicial claim, but to obtain all necessary clinical documentation to make a complete claim, and for our experts to be able to use this as a source of the report.
VIII. Non-application of interests under Article 20 of the Insurance Contract Law
Some claims brought against insurers of alleged responsible parties for medical negligence do not claim the interest under Article 20 of Law 50/1980, of October 8, on the Insurance Contract (LA LEY 1957/1980) —hereinafter LCS— (LA LEY 1957/1980), losing an important amount to add to compensation.
On other occasions, knowing the existence of the responsible insurance company, the route of Article 76 LCS (LA LEY 1957/1980), which authorizes the injured party to litigate against the insurer, requesting said interests under Article 20 LCS, is not used, interests that usually significantly increase the claim, especially when the medical action occurred several years ago.
In conclusion, claims for medical negligence are complex, so it is important to avoid mistakes that can lead to the failure of the claim, with the enumerated errors being those that have caught my attention from the perspective of the defense of the healthcare community.
Source: Diario La Ley, link
