If my relative died as a result of medical negligence, can we claim?

Question

José Manuel Alburquerque · Accepted Answer

Yes. The closest relatives can claim for the harm the death causes them, each for their own harm and even if they are not heirs. It has to be proved, normally with the medical records, the post-mortem and a medical expert's report, that there was an error and that this error caused the death or deprived your relative of a real chance of survival. If the death occurred in the public health service, the claim is made to the public authorities within one year. If it occurred in private healthcare, the time limit is generally three years if it happened in Catalonia and one year outside Catalonia. Who can claim To determine who is paid and how much, the statutory compensation scale for road traffic accidents (the “baremo”) is usually used as a guide. It recognises a loss of their own for the spouse or partner, the children, the parents, the siblings and, in some cases, people close to the deceased who lived with them. Each of them is compensated for their grief and, if they were financially dependent on the deceased, for what they no longer receive, such as the money the deceased used to support the family. In addition, the courts usually allow the heirs to claim for what the deceased suffered before dying, such as the days in hospital because of the complication. If the illness could have been fatal anyway, for example a cancer that was diagnosed late, compensation is not paid for the death in full. A percentage of the total is paid, according to the chance of survival that was lost. The evidence The post-mortem. If you suspect that the death was due to an error, raise it before the funeral or cremation. It is carried out by the court's forensic doctor if a report is made to the police or the court and the judge orders it, or by the hospital if the family requests a hospital post-mortem. The medical records. They can be requested by relatives and by those who had a de facto relationship with the deceased, unless the deceased had expressly forbidden it. They do not include anything affecting the deceased's privacy or the doctors' personal notes. A report from a medical expert in the relevant speciality, stating whether there was an error and whether that error caused the death. How and when to claim The time limit generally runs from the death, or from when the family could have known its cause if this came to light later. If your relative was treated in a public hospital, or in a private hospital working for the public health service at public expense, a claim is made to the public authorities based on their “responsabilidad patrimonial”, their liability in damages. In private healthcare, a written claim is made against the doctor, the clinic and their insurers. In Catalonia the time limit is generally three years, although the prudent course is to claim within the first year. Before suing, you must make an attempt to reach an agreement, such as a written proposal to negotiate, as the law has required since 2025. If you are also thinking of reporting the death to the police or the court as an offence of causing death by negligence (“homicidio imprudente”), decide soon with a lawyer, because in the less serious cases the offence becomes time-barred after one year.