What does winning a medical negligence case depend on?

Question

José Manuel Alburquerque · Accepted Answer

Above all, on proving with a good expert report that the treatment fell below good medical practice and that this error caused the harm. Many cases are lost because, although there was an error, the harm would have occurred anyway. Things that have nothing to do with medicine also count, such as claiming within the time limit, choosing the right route and the right defendant, claiming a properly calculated amount and having first tried to reach an agreement. Nobody can guarantee the outcome, but a preliminary assessment with an expert makes it possible to know whether the case has any basis before spending money on a court case. What decides the merits of the case The expert. Ideally, the expert should be in the same speciality, should have studied the complete records and should explain clearly how the treatment departed from good practice and what consequences it had. When the parties' experts disagree, the judge usually gives more weight to the one whose reasoning is better and who relies on the medical literature. The link between the error and the harm. If the illness would have developed in the same way with correct treatment, the error does not explain the harm. If correct treatment offered a real chance of avoiding it, part of the harm can be recovered, which is known as loss of chance. The complete medical records, requested in good time. If there are gaps in them, this usually counts against the hospital or clinic, but you must have requested them first. The information. If you were not told about the risks and the alternatives, you may have a valid claim even if the technique was correct. In that case, compensation is usually awarded for a percentage of the harm, not for all of it. What can make you lose a good case Missing the time limit. If you were treated at the expense of the public health service, it is one year from recovery or from when the after-effects stabilise. In private healthcare, the shortest time limit that may apply is three years if the events took place in Catalonia and one year outside Catalonia, although the prudent course is to make a written claim within the first year. Choosing the wrong route or the wrong defendant. In the public health service, you claim against the public authorities and not against the doctor. In private healthcare, you can claim at the same time against the doctor, the clinic, their insurers and, if you were treated through private medical insurance, the insurance company. Claiming an amount with no basis. Compensation is normally calculated using the statutory compensation scale for road traffic accidents (the “baremo”) as a guide. If you claim much more than the judge awards, the other side may not have to pay your costs of the proceedings even if you partly win. Not trying to reach an agreement first. Since April 2025, to sue the doctor, the clinic or their insurers you must first have tried to resolve the matter without going to court, for example through negotiation with a genuine proposal or through mediation. Without that attempt, the court will not admit the claim. Refusing without good reason can count against whoever does so when the judge decides who pays the costs of the proceedings. Before deciding The prudent course is first to commission a report on the viability of the case from an expert in the relevant speciality, with the complete records. If it concludes that the treatment was correct, you save yourself a court case you would lose and the other side's costs of the proceedings, which the losing party usually pays. If it concludes that there was an error, that report will be the basis of the claim and of the attempt to reach an agreement.