Medical negligence cases

In the last post of my blog I talked about medical malpractice and now I found two similar cases that occurred a few months ago. They are related to medical malpractice in which they applied Article 1101 of the Civil Code mention in the other post. 

The Madrid Health Service (SERMAS) was sentenced to pay 276.976 euros to two patients by delays in the diagnosis of breast cancer and bone tumor.

SERMAS issued a resolution that recognize their responsibility and agrees to compensate Maria with 205.600 euros provided by the poor health care: the patient was delayed for 16 months in a public hospital in the diagnosis of a bone tumor.

Maria went to the Prince of Asturias Hospital for a TAC in january 2012 in which an injury was observed “on the plaque that was unnoticed unjustifiably“ according to the Patient Advocate. The desease was diagnosed in february 2013, when Maria attended the Clinical Hospital San Carlos. Alvaro Sardinero, Patient Advocate, believes there have been increasing in these incidents in recent years. “Many negligence cases occur due to lack of time and the results would be different if they had more time to see well the TAC test“.

The High Court of justice of Madrid also condemned SERMAS with 71.376 euros to compensate a patient for the delay in breast cancer detect. The patient, Conchi, made in 2009 an ultrasound and a mammography. Doctors said that everything was normal, but a year later she was diagnosed a malignant tumor. The court recognized in the judgment that the delay in diagnosis aggravated the tumor. 

The say that “This time that they take away from the patients can end with their lives“.

http://ccaa.elpais.com/ccaa/2015/11/04/madrid/1446665895_490483.html

Medical negligence or malpractice

Medical negligence or malpractice is usually caused by lack of professionalism of the doctor or center responsible to the prejudice of a patient. This actions may cause the patient misdiagnosis that can be irreversible or damage that could be available. In this sense, there are many cases where the courts recognize this responsibility.

Here are some of them:

1. Delay or misdiagnosis of a patient.

2. No follow specific protocols.

3. Provide an inappropriate prescription of drugs.

4. Perform surgery with harmful results for the patients.

5. A serious infection spread because of poor hygiene at the hospital.

6. No provide emergency health care.

7. Lack of postoperative supervision.

If malpractice or medical negligence happen you should keep in mind that any medical documentation can be much helpful to a later claim.

According to the spanish Civil Code:

The infringement of the duties of doctors behavior generates responsibility for the infringement of Article 1101 of the Civil Code, if an action is brought contractual liability. Article 1101 of the spanish Civil Code says: “Persons who, in the performance of their obligations, should incur willful misconduct, negligence or default, and those who in any way should contravene the content of the obligation shall be subject to compensation of any damage caused“.

http://www.grupomedicodurango.com/casos-mas-comunes-de-negligencia-medica-o-mala-praxis/

Civil liability in the spanish Civil Code

Any natural or legal person is capable of producing damage to a third party, whether by action, omission or negligence. The damage can carry criminal consequences when the action, omission or negligence is criminalized and civil consequences when they understand that there is still a crime, it must repair or replace the previous situation to the damage.

The civil liability represents the basis of Articles 1902, 1903 and following the spanish Civil Code:

• The art. 1902 of the Civil Code states: "Whoever by act or omission causes damage to another, intervening fault or negligence is obliged to repair the damage caused."

• The art. 1903 adds: "The obligation imposed by the previous article is required not only for the acts or omissions themselves, also by those people who should respond“.

Parents are responsible for damage caused by their children who are under their care. Tutors are responsable from the damage caused by minors or incapacitated that are under their authority and live with them. Also the owners or managers of a business establishment and respect of the damage caused by their servants in the service of the classes that have employees.

http://www.segurosrc.es/que-es-responsabilidad-civil.htm

The types of products defects

In this post I am going to speak about the defects that cause injury and also about the various products liability cases.

Product liability is the most effective weapon consumers have against dangerous products. This responsibility may occur at any point in the manufacturing process or in the distribution of a product. Consequently, the manufacturer, wholesaler an the seller of the product may share responsibility for the damage caused by a dangerous or defective product.

Defects that cause injury

• Design: An imperfection or error in product design can be very dangerous. This flaw existed before manufacturing the product.
• Manufacturing: A kick in the manufacturing process cause that some products are defective.
• Marketing: Missed warnings or instructions for using the product correctly.

A person injured by a dangerous product is required to check that the product is defective. There are three types of defects that impose liability on manufacturers and distributors of a product:

The various products liability cases

Strict liability: A applicant can fully recover from an injury without having to prove misconduct by the defendant. The plaintiff only has to prove that the injury was caused by a defective product that was manufactured or sold by the defendant. This type of case is the most common.

Breach of warranty: The defendant was negligent in failing to warn the plaintiff about the dangers of the product. Guarantees may be express or implied. A guarantee is broken when an applicant purchases a product with the intention of using it safety and trusts that the manufacturer had the knowledge to create a safe product. This guarantee means that the manufacturer or seller of the product presented a way for the client to trust the product.

Neglect: It is more difficult for the plaintiff prove a case of negligence. To do so, the plaintiff must establish: 

• A relationship between the manufacturer and the defendant in which the manufacturer had the obligation to protect the buyer.
• Failure to comply with this obligation. 
• A relationship that caused injury or damage to the buyer.
• https://www.law.cornell.edu/wex/es/responsabilidad_del_producto

Meaning of civil product liability

In the previous post I talked about a case of civil product liability and maybe it was not very well explained so here you have a little explication about civil product liability:

The word liability means responsibility for the damage presumed by the applicant and the damages suffered. A person found liable in a civil action, upon a verdict in favor of the applicant, must pay whatever damages to the applicant. 

The civil liability of manufacturers, suppliers and other players is the personal injury or damage to a property caused by a defective product. Product liability law can be split into 3 regimes: contractual liability; common law tort of negligence (fault-based liability); and statutory strict liability.

Under the law, a person who suffered injury caused by an unsafe product can only sue under contract or negligence. If there is no contractual relationship between the two parties, the injured person is denied a contractual claim.

Civil liability of products

In the present case, the Court of Barcelona condemning the Damm brewery to pay a compensation as a result of death to a person who swallowed a bottle of beer that contained traces of a toxic agent used on washing the returnable containers.

 August 1, 1998 when the victim, his brother and coworkers went to take lunch the victim ordered a beer. The waiter opened the bottle in front of him and when he drinks a couple of swallows he realized that it had a bitter and bad taste. He gave to his brother to try it and he also realized that the beer to see was in bad conditions so they told the waiter please to change it and he returned the package to Damm. Hours later the man began throwing up and with diarrhea. These symptoms worsened until the 8th of the same month died of acute stomach flu.

The court concluded that the man died because of the content of the beer bottle since his brother who only took a slight sip also suffered diarrhea and vomiting for three days, while other diners did not have any kind and poisoning.

After all this happened, The Court of Barcelona sentenced Damm to pay 240,000 euros in compensation to the families of the deceased.

On the contrary, Damm alleges that the conviction was unfounded because it was not clear what caused the man's death or the kind of poisoning he suffered. That argument was invalid to them because the judge said that there were sufficient evidence to say that beer had poisoned him.

For more details about the case here you have the link where appears whole case very well explained: http://www.upf.edu/dretcivil/_pdf/mat_fernando/T82008.pdf

Hi everyone and welcome to my blog!

I have created this blog for my civil law subject and I would like to introduce myself.

Firstly, my name is Leire and I am in the degree of Labour Relations and human resources. I have decided to study this degree because nowadays it is very important to know the rights of  workers. Although this is not widely known degree I think that is very attractive and interesting.

Secondly, regarding to my hobbies, I love music, languages and traveling. Until two years ago I played the clarinet and and I went to music lessons for eight years but I had to leave because I did not have time.

Apart from music I like traveling and languages so this last two years I have been from a month in the USA in a host family. There I learn a lot and meet people of different countries.

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