What steps do you need to take to claim for medical negligence?

Question

José Manuel Alburquerque · Accepted Answer

The first thing is to look after your health and gather the documents, starting with a complete copy of your medical records. With them, a medical expert in the relevant speciality has to tell you whether there was an error and whether that error caused you the harm, because without that report few claims succeed. Next you need to know which route applies, because claiming against the public health service is not the same as claiming in private healthcare. Before the time limit runs out, you must make a written claim. In private healthcare, the law also requires an attempt to reach an agreement before suing. Before claiming Seek medical attention for the harm and make sure it is recorded in writing, in accident and emergency or by another doctor. Ask in writing for a full copy of your medical records, with the test results, the reports and the consent forms you signed. The first copy is free, even if you request it in order to make a claim. Keep the reports, prescriptions, invoices, photos, messages and the names of those who treated you. Ask a medical expert in the same speciality to carry out an initial review of the case. The expert will tell you whether there was an error and whether that error caused the harm. Against whom and by which route It depends on how you were treated: At the expense of the public health service, in a public hospital or primary care centre (“CAP”) or at a private centre working for it. The claim is made to the public authorities. In a private clinic or private practice, paying yourself or through private medical insurance. The claim is made against the doctor, the clinic and their insurers. If the doctor was on your insurer's list of doctors, against the insurance company too. As a private patient in a hospital that also works for the public health service. The route is the private one. The claim Work out the shortest time limit that may apply, which in the public health service is one year. That time limit keeps running while you wait for your medical records or the expert's report. In private healthcare, send the doctor, the clinic and their insurers a written claim for compensation, for example by “burofax”, a certified letter with proof of content. This interrupts the time limit. Before suing in a civil court, try to reach an agreement, as the law has required since 2025. This can be a negotiation, a mediation or the opinion of an independent expert. It must be a genuine settlement proposal, not a mere demand for payment. Keep proof of your proposal and of the reply, because it has to be filed with the claim. If no agreement is reached, the claim is filed in court. In the public health service, a claim for compensation is submitted to the public authorities based on their “responsabilidad patrimonial”, the liability of public authorities in damages. If the authority rejects it or does not reply within six months, an appeal can be brought before the administrative courts. A criminal report to the police or the court is usually reserved for the most serious cases. The amount is settled once the after-effects stabilise. To calculate it, the courts use as a guide the traffic “baremo”, the statutory compensation scale used to value personal injury in road traffic accidents. That wait should not make you miss the time limit, because you can claim beforehand and set the figure later. Do not sign any settlement and release form before you are discharged from medical treatment, because in principle it closes the claim.