What to do if you are a victim of medical malpractice

It is very difficult to know how many medical malpractices are committed in Spain, because they are only recorded if there is a complaint. In 2015, the Spanish Patient Ombudsman registered 806 notifications of deaths attributed to medical negligence; and in 2014 it received a total of 14,430 complaints for medical negligence. If you believe that you have been a victim of medical malpractice, we will tell you what you can do, if it is better to file a civil or criminal lawsuit or if it has to be by contentious-administrative means, how to prove medical malpractice, what is the term to claim, etc.

WHAT IS CONSIDERED MEDICAL NEGLIGENCE

We are facing an error when the treatment is not adequate and causes injury to the patient, when it has stopped acting or has not been well informed. This injury can be physical or psychological and the responsibility can fall on any healthcare professional.

The most common cases are the following:

Bad diagnosis.
Not carrying out adequate follow-up after the operation.
Insufficient protection against aggressive treatment.
Premature or late medical discharge.
Forgetting surgical supplies.

VICTIM OF A MEDICAL ERROR? THIS IS THE FIRST THING YOU SHOULD DO

First of all, you must collect all the medical information you have and even demand said documentation at the medical center.

Likewise, it will be convenient to have the testimony of other patients or witnesses you have of the events (roommates, for example).

After that, and with the suspicion of having been the victim of medical negligence, it would be advisable to contact a lawyer specialized in these matters. It will be he who will determine if there is indeed a negligence in medical practice and, if there is, by what means the claim should be made.

There are three ways to make a claim for medical negligence: criminal, civil and contentious-administrative.

THE CRIMINAL WAY

It can be started by a simple complaint stating the facts and directing it against the responsible physician, or against the health center. In this complaint we must provide the medical information we have, such as the initial part before the injury and the current state of the patient.

What the court does

The court will open the file and summon the injured person to be visited by the court's doctor (the forensic doctor), who will make a report stating the injury, the days necessary for recovery, and any remaining sequelae.

In case the error has led to the death of the patient, the next of kin can request an autopsy through a doctor (autopsies can only be ordered by a doctor authorized by the family). The results of this autopsy will tell us the cause of death and will facilitate or not the way to file the claim against the cause of that error.

If the error is confirmed

If the coroner confirms our complaint and it turns out that there is an injury caused by medical error, they will summon us to court against the person responsible. In this trial, apart from the criminal conviction (jail time or prohibition to exercise their activity), compensation will be required for the injuries (whether physical or psychological). Those injuries must have been reflected by the forensic doctor and our lawyer will tell us how much we can demand.

Why choose criminal proceedings

Generally, the criminal route is the one that your lawyer will use when the result of the error has been a serious injury or death, since this route is fast and inexpensive.

What can we achieve with it

With it we will seek the penalty of imprisonment or disqualification for the responsible medical professional, in addition to being able to demand compensation.

Only against the doctor?

You can go against a public or private center and the first step will be to file a complaint.

What is the deadline to claim

If it is a crime, the time we have to put it is 3 years. If it were a fault (the damages are minor and do not need medical treatment), the period would be six months.

Advantages of criminal proceedings

Even if you lose and acquit the accused, it is very rare for the judge to make you pay the costs of the trial (the complaint must be considered very reckless).

Nor is it usually necessary to hire and intervene doctors to declare in our favor. The verification of the medical documentation and the review of the case falls to the forensic doctor of the court.

Disadvantages of criminal proceedings

The strong corporatism that exists in the medical sector, as well as the general reluctance of judges when it comes to criminally convicting a physician.

THE CIVIL WAY

For milder cases, the civil route is usually chosen, which, although it is the most expensive, is also the most effective.

Why choose the civil route

This route, in principle, is reserved for those unwanted medical results in which either the injuries are not so important as to open a criminal procedure, or the criminal conviction of the responsible healthcare professional is not sought.

What can we achieve with it

It is a legal procedure in which only the economic compensation of the patient is sought through a lawsuit against the healthcare professional, the medical center or even directly against the insurer responsible for the healthcare professional.

Advantages of the civil route

This route collects the highest number of favorable sentences for the patient and is usually the most used in private healthcare.

Disadvantage of the civil route

The drawback is that it is a much more expensive procedure than the criminal one, since it implies a provision of funds, that is, advance money, to the lawyer and the attorney (necessary, obligatorily), as well as the payment to the private medical expert that we must hire so that he can make the report to us and so that later he can testify during the trial.

These expenses, of course, do not guarantee that we will win the lawsuit. Furthermore, we can also find ourselves with the unpleasant surprise that, after having lost our minds, we are forced to pay the other's legal expenses, which would cause a disastrous result in our economy.

These court costs can be about a third of what we ask for in the lawsuit. Therefore, you must be cautious when filing a medical malpractice lawsuit, because the results can be disastrous.

THE CONTENTIOUS-ADMINISTRATIVE WAY

This option is the least effective and the most desperate, because it can take about 4 or 5 years.

Why choose the contentious-administrative route

Well, because if the error has been made in a public hospital, an outpatient clinic or a center participated (even minimally) by any Administration, it is the only way.

What should we do

You start by claiming the hospital patient care service. If they do not answer or the answer does not satisfy us, we can file an administrative claim. The hospital can deny its responsibility and from there a lawsuit is initiated with the mandatory participation of a lawyer, attorney and the essential medical expertise.

What can happen

The Administration has all the time in the world to appeal. That is, from 3 to 7 years of processing. Although there are legal "tricks" to avoid it, such as skipping the Administration and directly suing the health center insurance.

For cases in which inadequate attention or incomplete information has been given to us in a public center, the most appropriate route is the contentious-administrative one. It is like the civil route, but instead of a private center it is an Administration center.

In this way, only financial compensation can be obtained and no action is taken against the responsible doctor.

Advantages of the contentious-administrative route

The procedure starts with a claim against the Administration for liability and you do not have to pay the Administration expenses if you lose. In addition, if the claim is rejected or, within a period of six months, the Administration has not issued a resolution, the injured party has another six months to go to court.

Disadvantages of the contentious-administrative route

The longest is the duration of the process, which is usually not less than three years until a sentence is obtained.

ASSESS WHETHER IT SHOULD BE FOR YOU TO REPORT OR NOT

Regardless of the best way to claim in your case, assess before launching into it and think about the economic cost that it may entail. From the outset, at the very least, hiring a lawyer is essential in this type of lawsuit and none can give you absolute guarantees of success.

Analyze what financial compensation you could get and compare it with the total costs that the claim will cause you. Maybe you come to the conclusion that it does not compensate you even by winning.

Even in a civil lawsuit, you would only get the other party to pay your costs if you won 100%, that is, if the judge granted you everything you ask for. Unless it resolved, for example, compensation one euro less than what you requested, your costs will be borne by you. And, of course, you can also lose.

HOW TO DEAL WITH MEDICAL CORPORATE ACTIVISM

Another element to take into account is the reality of these types of lawsuits: most of the time it is very difficult to get a conviction, unless the malpractice is flagrant. There are many lawyers dedicated to civil and criminal liability issues who point out that there is corporatism in the medical sector, that is, that they defend themselves excessively.

In most cases they justify a practice from which a health problem for the patient is derived based on the risk percentages that any operation entails, previous problems not declared by the patient … The best thing is that a very specialized study your case thoroughly before you decide to report.

It may also happen that the forensic doctor may be reluctant to prosecute the practice of another healthcare professional. In order to “erase” these reluctance, it is convenient to add to the official reports (that is, those contributed to the complaint) an own medical expert opinion. It is a report from a doctor hired by us, in which he confirms as an expert the error that has been made.

THE DOCTOR IS INSURED

An important advantage is that all doctors in this country have the obligation to contract, through an insurance company, a civil liability policy that is financially responsible for errors caused by their medical practice, either individually or through their College. of Doctors.