A final judgment of the Canary Islands Superior Court of Justice (TSJC) endorses the tenacity maintained for five long years by a mother, Nayra Magdalena, to show that medical negligence was the cause of your child’s death 28 days after birth. Nayra, a resident of La Laguna, saw her life change forever that summer of 2015. First, by the birth, on August 14, of his twins Joel and Mateo. Then, due to the serious health problems that led to the death of the latter on September 11. The court has ruled that, according to the ruling, “the delay in the diagnosis and subsequent surgical intervention of the minor reduced his chances of survival.”
Nayra assures that she has faced this fight with a double motivation. On the one hand, “that it does not happen again” and, on the other, “setting a precedent through jurisprudence”. He is very clear that the 63,269 euros of compensation – he condemns the SCS and its then insurer – “will not return my child to me or mitigate the pain, but we had to do it for the memory of Mateo.”
Nayra begins her story with a sentence: “I fully trusted the doctors.” They were wrong and with very serious consequences. The baby dies because the surgeon on duty does not go to the hospital on a holiday to check on Mateo’s condition.
“Two objectives have moved me: that it does not happen again and establish jurisprudence”
Nayra recognizes the risk of her pregnancy, something frequent when it comes to identical twins, but, she remembers, “they were not excessively premature at birth.” The judgment of the TSJC, of August 13, 2020, ratifies the one issued in its day by the Contentious-Administrative Court Number 1 of Santa Cruz de Tenerife. It summarizes what happened after the birth of the child, at 12:30 a.m. on August 14, 2015, weighing 2,365 kilograms. “Twin pregnant – the document points out – on August 10, 2015, at 33 + 2 weeks of gestation, the pregnant woman enters the HUC for control of fetal well-being.” It concludes that “the Canarian Health Service knows the situation from the first moment”. Thus, the story continues, “it is decided to end the pregnancy at 33 + 5 weeks precisely because … we are facing a premature delivery, anticipated, also, due to a medical decision and because the complications are known. Therefore, “with this background, there should have been a surgeon available from the first moment, from the delivery itself, since it was clear that at least one of the twins could be born with difficulties.” Necrotizing enterocolitis, Mateo’s pathology, is the most frequent of the gastrointestinal diseases of a premature newborn, “so it seemed entirely logical to check its presence or absence from the first moment, as well as to have a surgeon available in case of need”. The story continues: “The child experiences a progressive deterioration from Saturday 15 (holiday) until Monday 17, when he was operated on.” Since the surgeon arrives on Monday, an emergency operation has been carried out, “which should have been carried out on the 15th,” says the sentence. After the intervention, “a drain was placed in Mateo that did not work properly,” he values the failure. And he concludes: “Until September 2, the child was not examined again by a surgeon. Intervened on September 11, he died that same day at 5:55 p.m. ”.
Nayra recalls that “on the night of the 14th, Friday, the team of neonatologists left, and in the following 31 hours there is absolutely nothing written in the child’s file, something unusual.” In other words, no doctor checked the child’s health status for three days since the August 15 holiday. The sentence corroborates this: “The absence of all medical notes can be observed between 10:04:33 hours on August 14 and 17:11:22 on the 15th. Ergo, it cannot be considered proven that no doctor checked the state of health during that period of time, which exceeds 24 hours ”. Nayra sums up: “We realized – approximately 36 hours after birth – that Mateo’s intestine was inflamed when he received the first food.” Here, according to the sentence, there is a vacuum. “They tell us that they are in contact with an on-call pediatric team that has proven to be non-existent. The medical report details that Mateo had to spend 48 hours in the ICU. The nursing staff concludes something else ”. The surgeon on duty did not go to see the minor – there were pediatricians at the HUC, but no specialists – as it was the weekend and on two occasions he decided, by phone, that Mateo’s situation did not require intervention. “They told us over and over again that it did not require assessment, but it seemed to us that it was not normal for anyone to do it in person,” he adds. Almost from the moment of the denouement Nayra and her husband, Jonás, decide to investigate “to do justice.”
“I feel peace, but also a kind of emptiness for ending such an intense period”
Five years of struggle.
Five years – almost six now – and three sentences later, medical negligence is fully proven. Nayra and Jonás hire a lawyer, Carlos Sardinero, and an independent expert, in addition to ordering an autopsy. The expert opinion determines “two negligence. Not intervening the child from the beginning and a badly placed drain in the operation of August 17 ”. They present a patrimonial claim, now final. Nayra values the wear and tear, because “it is not enough to leave it in the hands of the lawyer, we have followed the case practically daily”. Carlos Sardinero, the lawyer, explained it like this in SER Tenerife: “Patients cannot be left helpless because it is summer or weekend. These tragedies always happen in these times with the personnel low and it cannot be allowed ”. Nayra breaks a spear “in favor of the Nursing team, who went out of their way for Mateo during the 28 days in which he fought for his life.”
Nayra admits that “this changed our lives forever.” He has suffered his “lows”, but the family has been remade. For three years it has had one more member, Julieta, who was born in the Hospital de La Candelaria “the result of a very rational decision”, Nayra emphasizes. The family nucleus is now made up of mother and daughter, together with Jonás, a husband who “has always supported and protected me as my environment”; April, 13, the fruit of a previous relationship; Joel, the identical twin who managed to survive, about to turn six, and Mateo. Also Mateo because he is always present. His mother explains: “We have seen a child grow up exactly the same as his brother would be. Joel knows it and is very aware of it. He names it naturally and even does activities as if he were. Note the emptiness to be identical twin ”. Nayra puts an end to this story: “I feel at peace because we have achieved the momentum so that this does not happen again. I know that children born after mine have had the service that Mateo did not have and, furthermore, jurisprudence is established. Although no sentence is going to return my son ”. On the other hand, he concludes “I feel a certain emptiness, the feeling that we have fulfilled and I do not have to continue taking care of him as before”.
Some key dates
August 14, 2015: Mateo and Joel are born
- Nayra gives birth at 33.5 weeks gestation. At 36 hours Mateo’s problem arises.
August 17, 2015: Emergency surgery
- The child is operated on urgently. The disease progresses and is already serious.
September 11, 2015: The Denouement
- Mateo does not pass a new operation and dies.
August 14, 2020: A Chance
- “Everything has its day”, Nayra values. The final sentence “is notified on his birthday, August 14.”