Case 4866/2009

Appeals were filed by both parties to a decision in a case involving health damages sustained by a child as a result of a delay of the mother’s cesarean during childbirth.

The child in the case suffered damages when, as a result of the lack of appropriate staff on-site, there was a delay in performing a cesarean on his mother during childbirth. The facility failed in its obligations as it was required by statute to have a functional doctor-on-duty system. The damages suffered by the child included “actuate fetal distress, hypoxic ischemic encephalopathy grade 2, apnea and Candida lung and kidney infection.” The result of these damages was severe psychomotor retardation and hypoxic neonatal encephalopathy. The mother, on behalf of herself and the child, filed a claim against the facility, the gynecologist, and insurance providers.

The lower courts awarded damages to the mother and the child from the facility, but found that there was no liability on behalf of the gynecologist or the insurance companies. Both the mother, on behalf of herself and the child, and the facility brought appeals to the present Court.

The mother raised three grounds for appeal. The first and second grounds were aimed at reviewing the liability of gynecologist and the insurance companies as the mother alleged that they did not act according to lex artis (appropriate professional duty) to prevent the predictable brain damage that was caused. The third ground for the appeal sought review of the compensation awarded by the lower courts.

The facility appealed on two grounds. First, the facility argued that it should not be liable as no employee was guilty. Second, the facility sought review of the compensation awarded by the lower courts, seeking a reduction.

The Court did not grant relief on any of the grounds for appeal presented by either the facility or the mother, on behalf of herself and the child.

With regards to the liability of the gynecologist, and the insurance companies that insured his conduct, the Court agreed with the lower courts that there was no individual liability. The Court found that the damages were not a result of the doctor’s conduct. The delay was not in the doctor’s decision that a cesarean was required, but rather the delay that caused the damage was a result of the facility’s failure to ensure the statute-mandated doctor-on-duty system to perform that procedure as needed.

With regards to the mother’s appeal on the grounds of compensation, the Court found that quantification of damages was a duty of the lower courts and that the judgment of damages could only be reviewed “in a cassation appeal if it is proven wrong or illogical a quo.” The quantification by the lower court was coherent and therefore the Court was not going to intervene.

With regards to the facility’s claim that it was not responsible as no employee was guilty, the Court found that the facility could still be liable. Deficiencies in medical service could result in liability for employees or for the medical center as a whole.  “The medical center can be committed because the aforementioned liability does not exclude the center itself, as stated in article 1902 of the Civil Code, as long as it can be attributed to a deficient or irregular service caused by omission or failure to comply with the duties related to the organization….” In the present case, the Court found that the facility had failed to maintain the required standards regarding doctors on call to perform procedures and therefore could be liable for any damages independent of any liability of specific employees.

With regards to the facility’s appeal to reduce the compensation award, the Court found that the compensation awarded by the lower courts was acceptable. As the lower court applied a rational analysis in determining the compensation, it was not for the present Court to intervene.

“The disproportionate harm is the harm which cannot be predicted nor explained within professional medicine and it obliges the doctor to justify the circumstances in which the harm was produced, following the principles of skill and probationary proximity. The doctor is required to explain why there is such an enormous difference between the initial risk involved in surgery and the consequence produced.” Page 6-7.

“El daño desproporcionado es aquél no previsto ni explicable en la esfera de su actuación professional y obliga al médico a acreditar las circunstancias en que se produjo por el principio de facilidad y  roximidad probatoria. Se le exige una explicación coherente acerca del porqué de la importante disonancia existente entre el riesgo inicial que implica la actividad médica y la consecuencia producida,..” Pagina 4.

“[I]t cannot be declared that the minor’s harm was due to the gynecologist’s action and that the gynecologist could not properly explain the harm in a careful, consistent and coherent way. It is then deduced that he acted with the diligence required by the medicine, so he cannot be blamed for the effects resulting from a defective attendance service provided by the Center [the facility].” Page 7.

“Siendo así, no es posible sostener con arreglo a esta Doctrina que se ha producido un daño en la persona del menor, vinculado a la actuación del ginecólogo, que no haya podido ser explicado debidamente por este, como así resulta de los hechos probados que la sentencia expone de una forma minuciosa, coherente y convincente, de los que se infiere que actuó con la diligencia exigida para el acto médico concreto, no pudiendo ponerse a su cargo las consecuencias derivadas de una defectuosa prestación asistencial por parte del Centro.” Pagina 4

“The medical center can be held liable because the aforementioned liability does not exclude the center itself, as stated in the article 1902 of the Civil Code, as long as liability can be attributed a deficient or irregular service caused by omission or by failure to comply with the duties related to organization, vigilance or service control. We are facing vicarious liability in the strict sense: the liability responds to the deficient service which the center must render and which is carried out by qualified staff and the corresponding organization, staffing and coordination.” Page 9.

“Al establecimiento médico, porque esta responsabilidad no descarta la del propio Centro por aplicación del artículo 1902 del CC , cuando le es directamente imputable una prestación de un servicio irregular o defectuoso por omisión o por incumplimiento de los deberes de organización, de vigilancia o de control del servicio. Estaríamos más que ante una responsabilidad por hecho ajeno en sentido propio, ante una responsabilidad por la deficiente prestación de un servicio al que está obligada la entidad y que se desarrolla a través de profesionales idóneos, cuya organización, dotación y coordinación le corresponde.” Pagina 6.