Medical malpractice takes place when a healthcare professional works away (by act or omission) from the models or medical protocols required, causing a physical, moral and even economic damage to the patient or their families in case of death.
It’s considered that a healthcare professional makes a medical malpractice when he doesn’t work according to the standards of the health profession which are explained in the guides or medical protocols (Lex Artis).
The more common medical malpractices are:
– Mistakes in the correct diagnosis of a disease or injury.
– Delay in the correct diagnosis of a disease or injury.
– Surgeries with a harmful result for the patient.
– Nosocomial infections.
– Damage caused by the surgical material during the medical procedure or surgery, or by forgetting it inside the patient.
– Not provide the urgent healthcare.
– Lack of informed consent.
– Don’t care the patient correctly during the post-operative period.
– Don’t obtain the result in voluntary cosmetic surgery.
Our advice is that you should trust your complaint to a medical malpractice specialist lawyer, who can advise and indicate you the steps that you have to follow, because these first moments are very important for the complaint’s success.
If you or a relative are victims of medical malpractice, we offer you an initial advice completely free, where we will analyze the documents and the viability of the case.
The continuous technical and practical training of our legal team in this area makes PEREZ TIRADO ABOGADOS a highly specialized firm in the area of health law, with a great experience in complaints about medical malpractices.
We are a firm committed to the attention of the people who suffered a medical malpractice in any of its specializations (Gynecology, Orthopedics, Vascular Surgery, Oncology, Plastic Surgery, Dentistry, etc.), whether in public or private healthcare, giving the most appropriate legal answer for the repair or compensation for the damage caused.
For the complexity of this area, before you complain, it’s necessary to carry out a preliminary study of medical-legal viability. For this, we have the cooperation of the best specialist doctors and healthcare experts from all the medicals specializations.
Therefore, if you have been a victim of medical malpractice, you don’t hesitate to contact us.
5.- What proceedings can be followed to complain because of the damages suffered as a result of medical malpractice?
When we have to start a proceeding for medical malpractice, we must take into account the context in which has happened. At this point, we find two large groups, firstly the badly functioning of the public healthcare service or medical mistakes produced in public medical centers or by their healthcare professionals, and secondly, the medical malpractices produced in private medical centers or by private healthcare professionals.
– If the medical malpractice is produced in the PUBLIC HEALTH (Public hospitals, healthcare centers, outpatient clinics, financed centers for shock plans,…), the proceeding that we have to follow is an administrative previous proceeding by filling a PATRIMONIAL RESPONSIBILITY COMPLAINT to the competent healthcare administration (Health Ministries) for the badly functioning of the healthcare administration or for the malpractice of their healthcare professionals.
In this proceeding you can require only economic quantities, not criminal or another kind of liability, to the healthcare professionals, that’s why you shouldn’t sue the doctor or denounce the private hospital.
– If the medical malpractice is produced in the PRIVATE HEALTH (Hospitals and private medical centers, private doctors, dentists, cosmetic surgery centers, plastic surgeons…), the proceeding that we have to follow is filing a claim about civil liability against the tortfeasors, which will be processed in CIVIL jurisdiction.
– Finally, we indicate you that it’s possible turn to the CRIMINAL jurisdiction, although it isn’t convenient in the majority of the cases. We must assess each case specifically to see if this is the right way.
The actions for mistakes or medical malpractice are subject to different deadlines depending on the jurisdiction in which they may be processed, and we mustn’t start the proceeding if that period has elapsed.
To sue for medical malpractice, firstly we must determine whether the act or omission occurred in the public or private healthcare service, and also if the facts are considered a crime. Thereby, we will determine the kind of proceeding that we should use.
CRIMINAL PROCEEDING (Public and private hospitals and clinics):
That proceeding would be processed by the courts of justice of the CRIMINAL jurisdiction..
We rarely suggest using this proceeding because the requirements needed to win are very difficult to prove. We only have to start a criminal proceeding when we have analyzed all the facts and the lawyer recommended it. The deadline to complain depend on the crime committed.
ADMINISTRATIVE PROCEEDING (Public hospitals and clinics):
The deadline to file a claim is one year since the medical mistake, since the patient’s death or in the event that it causes or aggravates an injury / damage / disease, the period for file the claim starts the day when the patient is healed or the injury / damage / disease are stabilized.
The healing or stabilization happen when the patient is discharged from the damage caused, either because they are already recovered or because they are stabilized, and therefore, consolidated as a sequel to the rest of his life. In this case, it’s difficult to decide when the period to complaint starts. Therefore, the best option is consult with your specialist lawyer, this point have to be useful as a little orientation just because in some cases there are another circumstances to be taken into account.
CIVIL PROCEEDING (private hospitals, clinics and doctors):
The deadline to file a claim is 1 year (Extra-contractual Liability) since the occurrence of medical malpractice, since the patient’s death or, in the event that it causes or aggravates an injury / damage / disease, the period starts the day when the patient is healed or the injury / damage / disease are stabilized.
Also, note that there is a period of 15 years in cases of Contractual Liability.
The compensation that you can receive because of a medical malpractice have to be individualized in each case depending on the damage.
Another important aspect to consider in this area is the medical expert, because in these cases, to achieved the recognition of the liability of the healthcare professionals, it’s absolutely necessary to have a medical expert in this area, who after studying the medical documentation will inform us about the existence of the medical mistake and the possibilities and guarantees of success if you want to complain.
Later, he will issue an expert report, where he will fix the medical mistakes produced, explaining them and stablishing the link between that medical malpractice and the damage inflicted to the victim. These reports are very important in this type of proceeding because they give us a strictly technical explanation of the case.
All the patients, or their relatives in case of death, have the right to obtain a copy of their medical record, and they can ask for this documentation to the doctor, the hospital (public or private) or the medical center where it has been treated.
This right of access is regulated in the Law 41/2002, of 14 November, about the Patient Autonomy, and we must cite the Article 14 about the integrate character that medical report has for including all the information about the patient, and we must cite the Article 18 about the guarantees of the users to access to their medical report.