When is something considered medical negligence?

Question

José Manuel Alburquerque · Accepted Answer

When the doctor, hospital or clinic does not act as good medical practice requires in that particular case and that failure causes harm to the patient. A bad outcome is not, in itself, negligence, because the doctor undertakes to use the proper means, not to achieve a cure. Their actions are judged by what was known and could be known at the time, not in the light of how things turned out. There is also negligence when the patient is not properly informed of the risks before a procedure or when there is a failure in the organisation of the hospital or clinic. What is required For someone to be liable, three things must be present: An error. Judges compare what was done with what a careful professional in the same speciality would have done when faced with a patient in that condition and with the resources of that hospital or clinic. This is known as the accepted standard of medical practice (“lex artis”), the correct way to act according to medical science. Harm, such as an injury, an after-effect, a worsening of the condition or death. That the error caused that harm. If the harm would have occurred anyway with correct treatment, there is no liability for it. If correct treatment offered a real chance of avoiding it, part of the harm is compensated in proportion to that chance. This is what is called loss of chance. In the public health service, the claim is made against the public authorities and not against the doctor. Although the law does not require fault, in healthcare the courts also require a breach of good practice. In addition, no compensation is paid for harm that could not have been foreseen or avoided with the scientific knowledge available at the time. How it is decided whether there was an error The symptoms and information available at each point are taken into account. What came to light later cannot be used to say that the doctor should have seen it. The guidelines and protocols of medical societies are the usual reference point. Following them does not always rule out liability and departing from them is not always negligence, because every patient is different. If the outcome is abnormal and cannot be explained by the risks inherent in that type of treatment, such as a serious and unexpected injury after a simple procedure, the courts speak of disproportionate harm. It is then for the doctor to explain what happened and to show that he or she acted properly. If the doctor does not give a convincing explanation, the judge may infer that there was negligence. Beyond the treatment itself Lack of information. Any treatment requires the patient's consent, given after the patient has been told what it involves, its risks and its alternatives, except in a serious emergency in which it is not possible to obtain consent. If the patient was not told about a risk and that risk materialises, there may be liability even if the technique was correct. In a judgment of March 2026 concerning a birth, the “Tribunal Supremo”, Spain's Supreme Court, awarded compensation for that lack of information as a percentage of the harm, based on the probability that the patient, had she been properly informed, would have chosen another option. Organisational failings, such as a lack of resources or staff, of monitoring, of hygiene or of coordination between departments. The hospital or clinic is liable for these, even if no individual professional can be singled out.