For medical negligence, is it better to report it as a crime or to bring a civil claim?

Question

José Manuel Alburquerque · Accepted Answer

In most cases the most suitable route is the civil one, or a claim to the public authorities if you were treated by the public health service. The criminal route is only open when the negligence was serious or less serious (“imprudencia grave” or “imprudencia menos grave”). It is usually reserved for deaths or very serious injuries involving a clear error. Making a report to the police or the court costs nothing and the investigation is directed by the judge, but most of these reports are dismissed or end in acquittal. While the criminal proceedings last, the civil claim is put on hold. When it is a crime Medical negligence is only a criminal offence if it is serious or less serious, that is, if the error is of some significance. Since 2015 minor negligence has not been punishable under criminal law and can only be pursued through the civil route or, in the public health service, before the public authorities. The most common offences are causing death by negligence and causing injury by negligence. Where the negligence is serious, they can be punished with imprisonment and, if it is professional negligence, with the doctor's disqualification from practice. Where it is less serious, they are punished with a fine and are only prosecuted if the injured party or their representative reports them. In that case, moreover, the offence becomes time-barred after one year, so the report cannot wait. What each route involves The criminal route has these advantages: Reporting it costs nothing and the investigation is directed by the judge, with a report by the court's forensic doctor, which you do not have to pay for. Compensation is claimed in the same proceedings. The doctor's insurer is also liable and, if the doctor works for the public health service, the public authorities pay whatever the doctor does not. If you were treated by the public health service, it is the only route in which the doctor is personally liable. But it also has these disadvantages: Most reports are dismissed or end in acquittal. For a conviction, fault must be proved beyond reasonable doubt, because the presumption of innocence applies. While it lasts, the civil route is put on hold. If the case is dismissed, you have to start in the civil courts or, if you were treated by the public health service, with the claim to the public authorities. The time limit for doing so does not run until you are notified of the dismissal. How they fit together If you report it, the claim for compensation is included in the criminal proceedings, unless you waive it or reserve the civil claim to pursue it later in the civil courts. If the criminal proceedings end without a conviction, you can claim in the civil courts, unless it is declared that the event did not happen. Not all claims succeed in the civil courts either. In both, you need a report from an expert explaining the error and how it is linked to the harm. The usual practice is to reserve a criminal report for deaths or very serious injuries involving clear negligence. Decide with a lawyer, with that report in front of you.