Do I need a medical expert to claim for negligence?

Question

José Manuel Alburquerque · Accepted Answer

The law does not require it, but in practice you do need one. The claimant has to prove that the doctor departed from good practice and that this caused the harm, a technical question that the judge, who is not a doctor, needs a specialist to explain. Without an expert report, only obvious cases succeed, such as a swab left inside the body. The prudent course is to commission an initial study from the expert before making a claim, because it will tell you whether you have a case and can spare you a court case with no prospect of success. Which expert They should be in the same speciality as the doctor you are claiming against and have clinical experience in it. They should study the complete medical records and not a summary. They should clearly compare what was done with what good practice required and explain whether that caused the harm. Their opinion must be based on the guidelines and the medical literature. They should assess the injuries and after-effects, normally using the statutory compensation scale for road traffic accidents (the “baremo”) as a guide. Sometimes that part is done by another doctor who specialises in assessing personal injury. Their fees are not regulated and depend on the speciality and the complexity of the case. Ask for a written quote before instructing them, including their attendance at trial if necessary. When it is used Before making a claim. An initial report on the viability of the case tells you whether you have a case. If it concludes that the treatment was correct, you save yourself a lost case and the other side's costs of the proceedings, which the losing party usually pays. If the time limit for claiming is close to expiring, do not wait for the report. Make a written claim first and provide the report later. In the attempt to reach an agreement. Since April 2025, before bringing a claim in the civil courts you must try to resolve the matter without going to court. One of the methods provided for by law is the opinion of an independent expert, who in these cases may be a neutral doctor. In civil proceedings. The report is submitted with the claim. If there is not enough time, it is announced in the claim and provided later, in advance of the first hearing before the judge. You can also ask the judge to appoint an expert. If you have been granted legal aid (“asistencia jurídica gratuita”), you can have an expert at no cost, appointed through the court. In the public health service. The file includes the report of the department that treated you and, often, that of the medical inspectorate, both of which usually defend the treatment given. Your expert has to rebut them in the claim or, later, at trial. In criminal proceedings. The court's forensic doctor provides a report, at no cost to you, although you can also bring your own expert.