Case 723/2009

The appellants, parents of a child with microephaly disorder, alleged medical malpractice in that the failure of medical services to identify and inform them of their daughter’s condition during the pregnancy denied them the choice to terminate that pregnancy.

In July of 2001, the appellants’ daughter was born and the appellants were informed that she suffered from an incurable condition identified as microephaly disorder. The appellants were not informed of the condition during the pregnancy. No ultrasound was performed in the first quarter of the pregnancy, a period crucial for identification of the disorder. The appellants also alleged that there was an improper interpretation of fetal measures from the ultrasound performed in the 22^nd week of pregnancy. The supervising medical professional failed to conduct additional tests to determine a correct diagnosis. As a result of the lack of information, the appellants were not able to make an informed choice of whether to terminate the pregnancy.

The claim, however, was not filed until October of 2004. There was a one-year statute of limitations on claims that started to run on the date the claimants became aware, or should have become aware, of the damage incurred. The parties disagree as to whether this date was the date of the child’s birth when the appellants first received notification of the condition or a later date when the extent of the damage from the disorder was presenting itself through various symptoms.

The lower court dismissed the appeal and now the appellants brought an appeal to the present Court.

The Court held that the appellants could not recover damages from the applicable public health services department in connection with their daughter’s disorder.

The Court found that the statute of limitations did not preclude the claim. Article 106.2 of the Spanish Constitution allowed individuals to recover for damages to “their property and rights, except in cases of force majeure, whenever such harm is the result of the operation of public services.” Before the statute of limitations begins to run on such a claim, it is necessary that the damages be quantifiable. As the symptoms defining the scope of their daughter’s disorder did not express themselves in a stable fashion for some years, making an earlier determination of permanent damages impossible, the statute of limitations did not begin to run until that time. Therefore, the statute of limitations was not a bar to bringing the case.

The Court considered the merits of the case and found that there was no evidence of malpractice sufficient to justify recovery from the public services. The Court reasoned that in order to recover there must not only be damages caused by the medical treatment, but also a breach of good medical practice (“lex artis”) that resulted in that damage. The obligations of medical professionals are “to provide the medical treatment and not to guarantee in any case the successful cure of the patient.” The Court found that, for the most part, the conduct of the medical practitioners was consistent with medical practices at the time. The one area of concern was the failure to communicate the condition to the appellants, once it was identified, in a manner that presented termination as an option. Article 10 of the General Health Law 14/86 required that every person receive full information on their condition and the alternatives available as treatment. The Court found that the lack of informed choice and consent could not be viewed as equivalent to a violation of lex artis just as how proper informed consent is not the same as a successful surgery. As there was no violation of lex artis, the daughter’s condition cannot be viewed as the cause of lack of informed consent.

“According to the case-law, permanent damages include those damages in which the cause of the damages has a beginning and an end, even when the resulting damages are lifelong or not subject to change; the sustained damages are those that occur daily and over an extended period without a solution for its continuity, and thus, it is required to allow a sufficient period of time in order to evaluate economically the consequences of this type of damage or its cause. This is why for these damages “the period for any claim will start the day in which the effects stop” or, as the judgment dated on February 20 2001 indicates, in these cases to bring any legal action on financial responsibility the dies a quo will be that in which the breaching effects are finally known….” Page 5.

“[T]he obligation of a medical practitioner only concerns the methods and not the results, that is, the obligation only extends to provide the medical treatment and not to guarantee in any case the successful cure of the patient. So, the lex artis criteria is a normal standard for the medical practitioner in order to evaluate the correct medical actions and impose the obligation to act according to the due diligence procedure.” Page 7.

“In this case, it is important to stay away from general principles and dogmatic statements given that informed consent is never equivalent to success in a medical treatment or in surgery. In the opposite sense, the lack of informed consent cannot be compared in an automatic and necessary way to a bad exercise, which means an inadequate medical treatment or a surgery after which the patient suffers symptoms. An emergency surgery is not the same as one planned with time enough for the patient to understand the importance of the decision of undergoing surgery. Nor is a surgical intervention that does not present any risk, from the very beginning, the same as another one where it cannot be known that the percentage of success is limited or minimum, when an alternative treatment has no or a limited effect.” Page 10.

“It is like this, given that the management of the pregnancy and the assistance during labor was done according to lex artis, as it was, with high qualified staff, as it was also, and using the most advanced scientific means and knowledge, the fact that the child Beatriz suffered the pathology already indicated, which later got worse, is impossible, or in procedural terms, inadmissible to relate the pathology with the lack or failure of consent.” Page 10.