Until now, if you, a citizen, had the misfortune that, in the event of a medical emergency, the doctor on duty did not perform the appropriate medical tests for your symptoms, it was understood that this margin between your imprudence and the outcome of your ailment protected the sanitary, as long as it could not be shown that this omission had necessarily caused the damage.
And you only had one way left to claim before the Spanish
: the civil one, the search for compensation, on occasions, very little in accordance with the damage suffered -and sometimes ridiculous-.
A pioneer sentence comes to change this now.
This is the sentence to two and a half months in prison and 115,000 euros in compensation to an emergency doctor at
the Sanitas La Moraleja Hospital in Madrid
, who failed to perform a head CT scan on a patient who was admitted urgently with obvious signs of vital risk , and ended in brain death a few hours later.
Until now, the situation would have led judicially to the criminal exoneration of the doctor, since the fatal outcome was not certain even if the doctor had ordered a CT scan.
Provincial Court of Madrid
, in a pioneering sentence, has criminally condemned the ER, opening a new jurisprudential path to claim this type of situation.
For this, it has applied the doctrine that in the
Madrid Arena Case
allowed the condemnation, by the
, of the doctors present that night in 2012 in the Madrid pavilion in which five adolescents died in an avalanche: although it is not possible to know if, still having taken the test (or carrying out the action), the victim would have been saved, if the negligence of the doctor precisely makes it impossible to know that point, he can be criminally convicted, provided that the other necessary circumstances concur.
That is to say: not only can compensation for medical negligence be obtained, but doctors will also respond criminally in situations in which they fail to comply with their obligations under the
In the Madrid Arena case, the doctors present in the pavilion that night were finally condemned for their inaction, although said inaction did not necessarily result in the deaths of the five adolescents.
In the case of the sentence of the Provincial Court of early December, the deceased, aged 61, was transferred at dawn on December 3, 2007 to
Sanitas La Moraleja
He had lost consciousness and arrived with fever and tremors, but only a superficial examination was performed.
He did not have a CT scan and a very important history was not taken care of: two days before he had already suffered another fall.
The next morning, with the shift change, the new physician is surprised to find him in very poor condition, with missing pupils.
In addition, he takes into consideration something that the other doctor had overlooked: the patient takes sintrom, the anticoagulant, which makes an urgent intervention more urgent.
It is at that moment that an emergency CT scan is performed and an important bruise emerges on the head.
He is transferred first to the ICU and then to another center, with the idea of urgent surgery, but he arrives brain dead.
When the case went to court, with the family of the deceased defended by lawyer
on behalf of the Patient Advocate Association, the doctor claimed that he did not remember the case, and even that he was not on duty that day.
Penalty 11 of
later condemns the doctor - exonerating the hospital -, adding: "It is an unquestionable fact that the defendant did not carry out any test to diagnose and guide the appropriate treatment, in accordance with the Lex Artis, limiting himself to performing a physical examination quite simple and analytical".
The Provincial Court of Madrid resolved last December the health worker's appeal, determining that there was no doubt that he was working that shift, and thus applying the doctrine of the Supreme Court: if the doctor's inaction left the patient defenseless, and even increased the chances of that he suffered harm, he had to be condemned.
According to the criteria of The Trust Project