The parents of a child who is now 13 years old will receive 3.3 million euros in compensation (1.9 in compensation and 1.4 in interest) for the serious consequences that the child suffers because of the poor attendance received in 2005 during childbirth at the Dexeus Institute, a private hospital in Barcelona. The insurer Sanitas, with which the family had contracted a policy, will be the one that will face the compensation, the largest amount issued to date by a Spanish court for a health negligence.
The minor suffered during the delivery a severe hypoxia (lack of oxygen in the body) that caused irreparable damage to the brain. The cause was the delay of at least six hours in the application of an emergency caesarean section due to poor monitoring of the state of the mother and the fetus. As a result, the child suffers from a severe developmental delay that prevents him from taking care of himself in all facets of life, has had to undergo a dozen interventions to mitigate motor disability and has lost his sight, according to the judicial resolutions.
The family, which has requested that its identity not be revealed, maintains that the sentence "repairs a small part, the economic part, all the damage suffered". "In everything else, obviously, it's impossible to compensate what happened," he adds.
For Rafael Martín Bueno, lawyer specialized in medical negligence, the ruling "is important because it adjusts the compensation to the real costs that the parents must bear". "This child will require multiple treatments throughout his life, and the family also has to face many other expenses, such as adapting the house, which is something that has historically not been taken into account in Spain in similar cases", adds Martín Bueno.
The judicial process started in 2009 and has been divided into two parts. In the first, explains the lawyer, the "objective was to prove the existence of the consequences and the responsibility of the health center." A court of first instance in Madrid ruled in 2014, in a ruling that was appealed by Sanitas and ratified by the Audiencia de Madrid two years later.
The second part of the process has focused on establishing compensation, which is what the Court of First Instance 20 of Madrid has done in a sentence dated October 5. Sanitas says it is still analyzing the ruling and has not decided if it will appeal. "In any case, we will assume our obligations, and we deeply regret this case, since our priority is the health of our clients," the insurer defends. She recalls that "Sanitas does not intervene in the performance of the medical act nor supervises it, this is the responsibility of the hospital and the doctor." The Dexeus University Hospital, current name of the health center, has declined to offer its version on the case.
The mother went to the health center on Friday, April 22, 2005 due to "intense pains and contractions," the family explains. The pregnancy was still in week 26, so the medical team "opted for conservative treatment" to the good initial state of the mother and fetus to try to "avoid premature delivery," according to the sentences.
The analyzes made to the mother from the night of admission and until 13.28 on Saturday, however, revealed the appearance of complications that were not detected in time by the doctors. The woman suffered "a progressive and serious anemia" due to the loss of blood and ended up requiring transfusions. In addition, an ultrasound done at 10.30 showed a premature detachment of the placenta.
Despite these "signs of fetal distress", doctors did not review the results of the tests until 6.30 pm, when they realized that an emergency cesarean section was already necessary. This intervention, in another delay censored by the sentence, took 50 minutes to be carried out, when "according to the experts can be carried out in 15 or 20 minutes."
The ruling states that "there was inadequate monitoring in the treatment as six hours were allowed to pass" without "checking the wellbeing of the fetus or performing new diagnostic tests". "This lack of vigilance resulted in hypoxia causing irreversible neurological damage to the child," concludes the ruling.
The recent judgment calculates the compensation to be received by the family from several chapters. For temporary disability (days of hospitalization and other related concepts), 169,000 euros. For the physical consequences (the maximum predicted, 100 points on a table of 100), 443,000 euros. For absolute permanent disability and the need for help from a third person, 573,000 euros. For the aesthetic damage in "very important degree", 79,000 euros. For the moral damage to the parents, 143,000 euros. For the costs of adaptation of housing and car, 124,000 euros. For future medical expenses, 300,000 euros.
In total, this and other items total a total of 1,934,184 euros. To this amount must be added, according to Article 20 of the Insurance Contract Law, the corresponding interest as of December 27, 2012, date in which Sanitas received the first demand. These interests are calculated by increasing by 50% the legal interest rate of the money for the first two years and 20% in the rest and amount to an additional 1.4 million.
The current legislation in Spain does not have reference scales to quantify the compensation that victims of medical malpractice must receive, either through civil (in the case of private hospitals) or contentious-administrative (public centers). "It is a pending issue," admits Juan Antonio Lozano, magistrate for civil matters of the Audiencia de Almería and member of Judges for Democracy.
Faced with this void, judges have for decades taken the scales established for insurance companies in cases of traffic accidents. "It was the only objective criterion we had," explains Lozano. "We were the judges who started using it and the Supreme Court admitted it, so we have continued with him."
The scale, which has the status of law, details the possible damages suffered and sequelae, among other aspects, and attributes an economic amount according to levels of severity also established. The first scale used goes back to 1995, although each year the amounts are updated according to inflation.
"In 2015 a new scale was approved," explains Lozano, "who has tried to solve some gaps that the previous one had, some are technical aspects, but others were trying to compensate those affected in relation to lost income. : It does not have the same economic impact to break Messi's leg as I do ", illustrates the magistrate.
Although the 2015 scale continues to be for traffic accidents, the text of the regulation already establishes in its third additional provision: "The valuation system regulated in this Law will serve as a reference for a future regulation of the indemnity scale of the damages and injuries that have occurred. on the occasion of health activity "
"That is to say," clarifies Lozano, "that if the architecture of the future medical scale will be based on the scale of traffic, we can easily apply it while it is not approved."