The Galician Health Service (Sergas) must compensate a family with 200,000 euros for a tremendous diagnostic error. A child of just two years was operated in 2004 and 2005 of a supposed "total and incurable" deafness that did not really exist. What the child suffered it was an autistic disorder and she was a professor at the Ourense public school where she studied, a specialist in hearing and language, who discovered it. Unfortunately, it was too late. The two surgeries the infant had undergone to implant an implant caused complete hearing loss in one ear.
A sentence of the first section of the room of contentious-administrative of the Superior Court of Xustiza de Galicia (TSXG) disclosed this Friday has condemned the Xunta, 15 years later, to pay the minor a compensation of 200,000 euros in front of the 150,000 that determined in first instance a court of Ourense last year. At this time the family went to court first through criminal proceedings, but the case was dismissed. "We are faced with a clear assumption of diagnostic error caused by a misinterpretation of the results of the auditory evoked potential test on its day. In short, other pathologies were not ruled out, as was obligatory, by means of complementary psychological, neurological or audiometric tests ", the civil court now resolves the high Galician court.
It was at two years when the child, who is now 17 years old, began to manifest "behavioral disorders with decreased attention capacity and relationship with the environment." His pediatrician of the public health decided to refer him to different private specialists of Vigo (otorrinos and logopedas) who, according to the sentence, concluded that he suffered a "total and incurable deafness" after performing "a single test of auditory evoked potentials".
In the public hospital of Vigo they assumed without question the content of these private medical reports. Thinking that they were "right" and "without exhausting the means of diagnosis", the failure relates, Sergas decided to place an implant in one of the ears of the child and to do this he emptied it. In the Complejo Hospitalario de Vigo, two interventions were carried out in December 2004 and February 2005. At the end of 2006, a teacher from her school began to suspect that the child was not deaf.
The Sergas then decided to refer the child to a specialized center in Barcelona, where they determined he was autistic. The magistrates indicate in the judgment that the hearing in the empty ear was complete, but in the other the implant caused its definitive loss. "The diligence in the time of the assistance or the applied technology is not discussed; what is in question is the manifest error of diagnosis regarding the ailment presented by the minor, "argues the court. In 2015, the Ministry of Health denied administrative compensation for the request for compensation from the family, who then had to go to court.
The resounding sentence of the high court is especially harsh with the arguments of the lawyer of the Sergas. "As if the Administration's silence on the claim deduced by the plaintiff was not enough, he does not hesitate to affirm that the assistance provided by the Galician Health Service was correct and adequate, and supports this surprising assertion in the fact that the Criminal jurisdiction, when filing the complaint promoted in this way, enshrined good clinical practice, "criticize the judges. And they add: "Neither is the time nor is it the mission of this court to explain to the lawyer of the Sergas something as evident as the difference between an individualized criminal responsibility, a civil liability, an administrative responsibility and even a political responsibility".
The high court raises the compensation set by the judge of first instance because, wields, the child was subjected to two surgeries "with the suffering that entails, time of hospitalization, maladjustment to the implant and, ultimately, loss of hearing of a healthy ear for its emptying ". The Court holds that, since it is a case of medical-care malpractice, it is "obvious" that the compensation must aim "at the full reparation of the harm suffered".