The head of the Contentious-Administrative Court number 3 of Pamplona has condemned the Navarrese Health Service-Osasunbidea (SNS-O) to compensate with a total of 320,000 euros to a family for an exchange of babies produced by error in 1993 at the Virgen del Camino Hospital from the Navarran capital.
Twenty-two years later, in August 2015, it was shown that biologically the applicant was not her mother’s daughter, has informed the Superior Court of Justice of Navarra (TSJN) in a note, in which it indicates that, for its part, the other young woman exchanged after the birth has refused to submit to the corresponding tests to clarify the facts.
“There is no biological affiliation”
In the sentence, which can be appealed before the Contentious-Administrative Chamber of the TSJN, the magistrate starts from an “objective and undeniable fact, that there is no biological affiliation” between the mother and daughter appellants in this procedure.
Therefore, the judge only finds one explanation: “The most real and probable hypothesis is that the exchange occurred in the SNS-O.” And he emphasizes that the most real thing is that, having both babies born on the same day, the exchange took place in the hospital, “when the health personnel were the only ones with access to the babies and when the error and the exchange could take place” , he emphasizes.
For the magistrate “it would be contrary to the norms of human behavior for two babies to have been exchanged after their discharge from their 5th or 6th day of life and all this without their parents realizing that upon discharge with their baby, the baby is not the same ”.
“In other words, it is not a realistic hypothesis to deny responsibility for the error in the exchange of babies by the SNS-O, and to understand that their daughter was delivered correctly to parents and that her parents were not to recognize it and exchange it with another baby without realizing that it is not his daughter. And all this influences the burden of proof when assessing the responsibility claimed ”, argues the judge.
In their claim, the appellants asked the Navarre Health Service for a total compensation for the damages of 1.7 million euros, although the judge has lowered the amounts in his ruling.
The SNS-O and its insurer, for their part, opposed the lawsuit. They rejected their responsibility and claimed that the appellant “was correctly identified.” at its birth with the method established at that time, which was that of the bracelet.
They maintained that there was a correct weight control of the babies and that there was correct compliance with the security measures, and they concluded that “there is a lack of accreditation of the supposed exchange of babies by the health personnel of the hospital center,” for which they argued for the dismissal of the lawsuit.
However, the judge assures that the responsibility of the SNS-O stems from its own report, which stated that “health personnel were the only ones who could access all babies.”
According to that opinion, “The mothers did not coincide in any room and only had access to their baby because they were not in common nests and fathers and mothers could not enter the boxes for exploration and performance of newborn techniques without the supervision of the plant professionals because they had restricted access ”.
If all this were so, says the magistrate, the exchange of babies would not be understood, since it would be necessary to consider the hypothesis that the exchange occurred after the babies and their mothers were discharged. And this happened a few days after the birth, so for the judge “it is completely illogical” that the exchange had taken place outside the hospital.