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April 2010 |
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Iberian
and Latin American legal news in briefMedical malpractice claims and insurance
Introduction In this month's edition of Iberian and Latin American Brief we discuss medical malpractice claims, how they arise and how they are dealt with by insurers in the different jurisdictions. We are also pleased to announce that Kennedys' Madrid moved to new premises on 6 April 2010. Our new address is: Paseo de Recoletos 27, planta 7 We hope you enjoy reading this month’s edition and, as always, welcome
your feedback. Regards
Alex Guillamont
Brought to you by Kennedys' London and Madrid offices, its associated
offices in Chile and Portugal and its network of specialist
insurance/reinsurance lawyers throughout Latin America. Spain Jurisdiction Thousands of medical actions and interventions are carried out daily. Medical interventions take place either in public or private healthcare facilities. In liabilities arising from public healthcare system interventions, the administration shall be directly and exclusively held liable (not the doctor(s) individually), through the contentious-administrative courts. Civil courts have jurisdiction for claims connected to private healthcare. In both cases, if there are indications of any offence - generally homicide or injury due to professional negligence—the doctor may be subject to a criminal proceeding. Points that must be taken into consideration when considering a medical
malpractice claims include: Professional medical liability is a best endeavour obligation and as such a specific result cannot be guaranteed because, as stated in the recent Supreme Court ruling of 30 June 2009, it is scientifically recognised that it is not possible to predict a result with certainty as not all individuals react in the same manner to the medical treatments available currently. The doctor’s obligation is to apply the techniques of medical science in accordance with best practices, with the care and precision required, according to the circumstances and risks of the specific case. The foregoing applies in what is known as curative medicine, since in the case of voluntary or satisfaction medicine, such as cosmetic surgery, the doctor’s intervention is not necessary, and patients go to the doctor specifically to obtain a specific result, and therefore this must be achieved. Informed Consent The doctor also has an obligation to the client to provide information in a manner which is comprehensible and suitable for his or her needs, to enable him or her to assess the possible consequences which may result from the intervention on the particular condition, so that the patient may elect to reject or delay a certain treatment due to its risks and/or seek a second opinion or choose a different centre (Supreme Court decision of 15 November 2006, and those cited therein). Ongoing verbal information is the most relevant for the patient, although for purposes of proof in judicial proceedings the ideal is to have a complete informative document, signed by the patient. If this is not the case, the doctor against whom the claim is brought shall be required to prove that the patient was adequately informed. In this respect, the Supreme Court decision of 29 May 2003 states that there should be at least “a record thereof in the clinical history of the patient and hospital documentation connected thereto”. The proof that information has been provided to the patient can also be reinforced by witnesses, for example, other doctors or health centre personnel. Burden of proof The claimant must prove that the doctor concerned acted against good practice. One exception to this general rule is the case law doctrine of disproportionate damage. This is damage which is not predictable or explicable in the sphere of standard professional activity, so that the concerned medical professional will have to prove the circumstances in which the damage occurred because of the principle of convenience and proximity of evidence. Summarising the Supreme Court decision of 23 October 2008, which in turn summarises the case law in this point: the medical professional is required to give a coherent explanation of why there is a significant discrepancy between the initial risk involved in the medical activity and the damage produced. In the absence of a coherent explanation, negligence may be implied. It is important to point out the importance that the courts place on experts reports. Although this is not always easy, insurers should try to avail themselves of a reputable expert versed in the specific medical speciality related to the claim in question. Contractual and extra-contractual liability In the area of medical liability, confusion arises between the contractual and extra-contractual spheres: damage in this context is usually both a breach of a contractual agreement and also a breach of the general duty at common law not to cause damage to others. This is the current understanding of the courts, who accepted to hear claims based both in contract or tort in order to protect the injured party’s right to effective compensation, minimising the possibility of rejecting the claim for advocating the claim wrongly. The criteria of the judiciary concerning attribution of liability, proof of negligence, and the relation of causality or quantification of damage do not vary at all according to whether the liability is considered to be contractual or extra-contractual. Therefore, the fact that the judge considers that compensation should be paid, but classifies the liability differently from that alleged by the claimant does not cause the defendant to be treated unfairly. This possibility open to the judge is, moreover, expressly stipulated in the current article 2181 of the Law on Civil Procedure (LEC). Pathology of med mal insurance Malpractice insurance is now a necessity due to the demand for higher quality health services, the increase in claims and the amounts of compensation awarded. This means that a greater number of liability insurance policies are taken out and it is common for one professional to be covered by several policies: his own, that of the hospital or health centre and/or that of the professional association. Medical professional indemnity policies include extensive cover applied to the conduct of the professional on the basis of his medical speciality, which usually determines the insurance contract that is taken out. Exclusions are common in respect of fee refunds and penalties or fines which may be imposed either by court decisions or in disciplinary proceedings by the professional association. Generally, in addition to the corresponding compensation, legal defence of the medical professional is covered, although often this must be provided by the lawyer appointed by the insurance company. In some cases the insured party may be permitted to appoint them freely, but often with a dissuasive limit on the fees recoverable in respect of the lawyer appointed. It is also normal to have counterclaim cover for the doctor against false accusations made against him. With respect to valuation of the damages resulting from the conduct of the medical professional, this is up to the discretion of the judge although, in the majority of cases, the scale for assessment of damages and losses caused to persons in traffic accidents as stipulated in the Revised Text of the Law on Legal Liability and Insurance for motor vehicle traffic is applied analogically. This subject will be examined in our next newsletter. Some would like to see a specific scale for medical legal liability
damages as some cases cannot be compared to the scale provided for traffic
accidents such as, for example,
infections. 
Chile Since the early 1990s, the country has experienced a boom and significant development in institutional and medical legal liability, and therefore an increase in the availability and take-up of legal liability insurance policies. The scenario is characterised by a significant and growing increase in claims and legal proceedings and in the number of health establishments and health professionals involved in malpractice cases. A rise in the sums claimed and the amounts of compensation awards set by the courts, and the variety and complexity of the cases submitted to be deliberated and decided by the courts, are also characteristic of the current situation. This development has taken place without corresponding changes in the applicable legal statutes, which, except in the case of state medical liability, have maintained their original conception based on the legal codes of the 19th century, whether in the area of civil or criminal liability. Therefore, learned authors and the judiciary have been responsible for the adoption of principles concerning patients’ rights, criteria for allocation of liability such as organisational fault and the creation of special duties in the area of healthcare (duty of safety), amongst other factors contributing to this development. On the other hand, the changes in procedural law, linked to the adoption of a new criminal procedure, which promotes compensation agreements in the case of quasi-offences such as those which concern us, and compulsory pre-trial mediation for health damages have led to greater dynamism in this area and pressure on insurance entities to settle claims quickly. Applicable statutes In Chile various liability statutes coexist. In civil matters, the
rules on contractual liability (art. 1545 et seq. of the Civil Code) and
extra-contractual liability (art. 2323 et seq. of the Civil Code), with
their limitations and theoretically clear differences, are in fact always
difficult to distinguish in practice. The first type is prescribed after
five years and the second after four years. For its part, the Criminal
Code penalises the quasi-offences of homicide or injury in article 490
which punishes any party committing gross negligence; article 491 which
penalises doctors and other health professionals for negligence and
article 491 which penalises imprudence or negligence with a breach of
regulations. With respect to state medical liability, the law no. 19.966
set a new statute, stating that the state administration bodies involved
in healthcare are liable for damages they cause to individuals due to
failing to provide a service (art.38); the individua l must prove that the
damage arose as a result of the action or omission by the body due to this
failure to provide a service. One of the major new features of this law is
in relation to psychological damage, stating that compensation for the
latter shall be set by the judge considering the gravity of the damages
and the change in conditions of existence of the party affected due to the
damages sustained, taking into account his or her age and physical
condition. It is expressly stated that compensation may not be paid for
damages arising from facts or circumstances which could not have been
predicted or avoided according to the knowledge of existing science or
technology at the time at which they occur (art.41). The period for
prescription of the action against such liability is four years from the
date of the action or omission. The civil courts have jurisdiction to decide on institutional or
medical professional liability, whether the defendant is a professional
or, private or public health establishment. At the moment Chile does not
have courts for administrative disputes. The criminal courts may
investigate and penalise a healthcare professional. In practice, cases of
health professionals brought before a public criminal hearing have been
the exception as, unless there is a prevalent public interest in
continuing the criminal prosecution, many of these disputes are settled
through alternative mechanisms such as the Compensation Agreement
(Acuerdo Reparatorio) or (Suspensión Condicional del
Procedimiento). In practice, the public attorney or Public Ministry,
the body responsible for criminal prosecution, has instructions to play an
active role in compensation agreements. Since 2005, Chile has had a pioneering system of compulsory pre-trial mediation for healthcare damages concerning both public and private providers, by means of which no legal action aimed at obtaining compensation for healthcare damages may be brought to the civil or criminal courts until the interested party has first brought the claim before a mediation process. If agreement is not reached or the mediation ends for other reasons, the claimant may bring the matter before the courts, providing evidence through the relevant certification that it has complied with the aforementioned mediation process. Whilst it is compulsory for the claimant to go through this pre-trial proceeding, once the mediation is started, continuing it is entirely at the will of the parties. The mediation takes place before private mediators registered on a register or before the State Defence Board (Consejo de Defensa del Estado), depending whether the party against whic h the claim is brought is a private or public organisation respectively. Whilst there is no empirical evidence at this time, it is possible to conclude that there has been a significant increase in the actions brought before the criminal courts, as a means to avoid compulsory pre-trial mediation, the claimants surely assuming that any negotiation in the context of a quasi-criminal action, with the intervention of the Public Ministry, may be more effective as a means of obtaining compensation. Medical liability and insurance We have witnessed significant growth in medical professional liability policies due to a greater awareness by health professionals of the risks of professional practice and the implicit requirements of many health establishments as a condition for practice. Nevertheless, there are few policies that cover institutional liability with specific cover for medical liability, the cost of which has become impossible to bear for many entities. Furthermore, public health establishments do not take out specific insurance for such claims. A wide and attractive field therefore remains for the development of insurance in these areas. With respect to the risk covered, the policies available cover the sums
that the insured is required to pay to third parties as a result of
negligence, imprudence or lack of skill in providing the services of its
professions, for the practice of which they possess qualification and
authorisation to practise, and which cause death, bodily injury, or loss
of assets or psychological damages as a direct result of such death or
injury, affecting persons who have received care from the insured. There
are relevant differences to consider between some policies with regard to
the time limits of cover, depending on the criteria of occurrence of the
negligent act or when the claim is made. The legal validity of the claims
made system has not been resolved to date albeit many policies are issued
on this basis. 
Portugal Medical liability must be assessed with reference to the duties and
obligations assumed by doctors when practising their profession.
Professional indemnity insurance of the Order of
Doctors 
Argentina The number of claims on the grounds of medical treatment has increased in recent years. In these situations, whether from the focus of the claimant or the health professional involved, it is important to take into account certain important aspects related to the liability of doctors and the cover that may be taken out for such a purpose. Best endeavour obligation Obligations emerging from professional medical liability in Argentina are generally considered to be best endeavour obligations and therefore the professional cannot guarantee a particular result, but chooses the appropriate technique from amongst the treatments considered correct in accordance with the accepted scientific medical principles. For this reason, the means to reach a certain diagnosis must be stepped up, and it is necessary to do so within an appropriate time frame. Without prejudice to this, we should point out that there are some exceptions to the general principle, such as the performance of plastic surgeons, whose obligations are considered to be result obligations. Informed consent In this respect, it is necessary to highlight that Argentinean case law
has resolved that health professionals must respect the will of the
patient, that is, the consent of patient or their representatives must be
required before carrying out a procedure, and must be given in writing for
a dangerous operation. Thus, under the doctrine of informed consent, the doctor may be questioned on circumstances in which the trigger for negligence on his part was not so much using an inadequate treatment but rather acting without the consent of the patient—or going beyond the consent given or not having informed the patient of the risks of a particular treatment. Burden of proof In the field of medicine, the principle of discretion should be foremost, as it is down to the doctor to decide upon the best course of treatment out of the available treatments that suit the specificities of the case. For this reason, the burden of proof falls on the claimant alleging the professional’s liability, even more so if the party claiming compensation bases its argument on the poor performance of the doctor. In order to attribute professional liability to a doctor, the relation of causality between the alleged transgression by the professional and the claimed injury must be proven. However, and despite the general principle mentioned, there is case law which considers that, in order to determine professional negligence and the causal connection between the conduct of the doctor and the injury, the burden of proof falls upon the professional, in view of the fact that the latter is better positioned to provide the means necessary to usefully prove his lack of negligence. Insurance In Argentina, medical professional liability insurance is normally claims made, on the basis that insurers will provide an indemnity to the insured for the third party claim made within the time limits of the policy, including any extended periods agreed therein. Although medical malpractice insurance is not compulsory in Argentina,
it has spread in recent years as a result of the increase in claims made
against health professionals. 
Bolivia In Bolivia, there are no specific regulations for professional liability in general and medical liability in particular. Codes of Ethics The various associations of professionals have approved ethics codes, according to which disciplinary measures may be applied, including temporary suspension or a ban on practising, but these associations do not have jurisdiction to resolve matters of professional liability. For instance, the medical ethics code in force in Bolivia says that the medical profession must practise with knowledge, competence and responsibility. Article 5 specifically states that professional performance should comply with the following basic standards:
Article 8 stipulates: "The doctor is responsible for offering the patient the best care possible with the knowledge and resources that the case calls for". These postulates, while certainly beneficial, are not a sufficient
response to the issue of medical legal liability. In the absence of
specific regulations, professional and indeed medical legal liability is
governed by the general rules contained in the Civil, Criminal and
Commercial Code. The Civil Code contains the basic proviso of tort or non-contractual
liability in Article 984, which reads: “Any person who causes any
unjust damage to someone through a culpable or negligent act is required
to pay compensation.” Prof. Juan José Castellón Prado, in his work
Legal and criminal liability of doctors in Bolivia states that the value
of life and the scientific nature of medicine lead us to require greater
liability from these professionals, in accordance with the principle that
the greater the importance of the professional act, the greater the
responsibility. Criminal liability Claims for medical professional liability in Bolivia are generally
handled in the criminal system, firstly seeking to determine the criminal
liability of doctors from which civil liability can be derived as a
consequence. However, as a result of the general rules on legal liability, there is nothing to prevent a claim via the civil system in an ordinary proceeding. This is a long and complicated process without the pressure that a criminal action poses on defendants; and for this reason most claims are initiated through the criminal system. Insurance The Commercial Code contains provisions on legal liability insurance in articles 11087 et seq. but only has one article on professional legal liability insurance which states, “the risks inherent to practising a profession can be insured. Professional liability insurance is invalid when the insured party is not legally authorised to practise”. The absence of an adequate legal framework and of making insurance obligatory has not helped the growth of a med mal insurance industry in Bolivia. There is a need for insurers to step in and provide, in exchange for premium, the dual protection that liability policies afford—that of the assets of the insured and of the victim’s justified demands. There is a market for professional indemnity insurance solutions which are affordable and accessible for all doctors and sustainable for insurers. As scholars say “Doctors in Bolivia work between technology and
intuition, in a climate of uncertainty as they are both cursed and
deified, accused of arrogance and greed and sometimes seen as
saviours”. 
Brasil In Brazil, physicians are responsible to redress damages caused to patients due to malpractice, imprudence, negligence or willful misconduct (liability at-fault). Also, in certain cases, hospital and medical clinics are liable to indemnify the losses that arise from a physician’s fault even if they played no part in the negligent act itself (strict liability). In Brazil, it is still disputable whether medical services shall be considered an obligation to attain results; or an obligation to act with diligence. In general, Brazilian courts and doctrine tend nowadays to consider medical services as an obligation to act with diligence. The exception is esthetic surgery which is considered as an obligation to attain results.In view that medical services are generally considered as obligations to act with diligence, the proper performance of such services depends on the compliance with the following duties:
Not only physicians are exposed to claims brought by patients, but also hospitals. In cases where there is a subordinate relation between physicians and a hospital, Courts tend to impose to the hospital the strict liability for the physician’s fault. In cases where the physicians do not have an employment/subordinate relationship with the hospital and only use/rent the hospital facilities, it is disputable whether hospitals are jointly (with the physicians) liable to indemnify patients for their losses. In several cases, Brazilian Courts considered the lack of legitimacy for the hospitals to be subjected to this sort of claim. It is important to stress that in Brazil indemnification is limited to the damages i.e. actual damages, loss of profit and moral damages, which are an immediate and direct consequence of a fault, which means that punitive and consequential (indirect) damages are not subject to indemnification. Insurance companies offer coverage for both physician’s liability at-fault and hospital’s strict liability. Such coverage may comprise the costs of defense, actual damages and also loss of profit suffered by a third party. In general, it is not common place to offer coverage for damages related to esthetics damages, prohibited surgical operation, radiological treatments and experimental techniques. The professional indemnity insurance market (which comprises medical
and other professionals) has grown considerably in the last five years:
premiums have increased from USD14 million to USD46 million. However,
there is more to be done in Brazil to spread professional indemnity
insurance to the whole of the medical profession. 
Colombia In Colombia, medical liability is regulated by the general legal liability standards of the Civil Code. Nature of medical liability The Supreme Court of Justice established that medical liability can be contractual or extra-contractual. Each case must be analysed individually to determine if a contractual or other type of link existed between the person sustaining the damage and the health professional and/or organisation which caused it. This case-by-case analysis offers the information necessary to determine the scope of any liability whether contractual or extra-contractual (Supreme Court of Justice Sentence 30 January 2001). The doctor’s obligations Best endeavour or result obligation? In accordance with the foregoing, the obligations arising for the doctor depend on the specific contract entered into. The judiciary has univocally and gradually determined that as a general rule the doctor’s obligation is of best endeavour and not result (Supreme Court of Justice Civil Cassation Chamber, sentence of 5 March 1940). However, on the basis of this same sentence, the possibility of result obligations arising has been admitted, as may be the case for interventions for aesthetic purposes. In this respect, the Supreme Court, in a sentence of 30 January 2001 established that one of the most important criteria for determining a doctor’s negligence is to use what is called lex artis ad hoc as a reference. This refers not only to developed medical protocols accepted on a global level to treat a certain condition, but to the special characteristics of the doctor, his speciality, the complexity of the treatment, the relative importance for the patient, the resources available, the time and place of the treatment, the state of the patient and all the circumstances that in any way affect the medical intervention or treatment carried out. Informed consent Informed consent has been understood in the country as a component of the lex artis of health professionals, so that in itself has become a requirement for carrying out curative medical surgery. It has been stated by precedent that the patient should be informed of the possible consequences of the procedure or treatment to be carried out, as well as the risks and possible permanent consequences that may arise. Elements of medical malpractice liability For medical liability to exist there needs to be damage as a consequence of negligence or fault in the service. It is important to consider the concepts of negligence and fault in the service. Negligence applies in those cases of medical liability in which only private persons and entities intervene, and what has also been considered as negligence is the medical professional breaching the rules that regulate the functioning of this science, that is, the so-called lex artis ad hoc. For its part, fault in the service applies in cases of medical liability in which public entities are involved. This assumes the negligence of the healthcare employees involved in each case or the lack of organisation of the medical teams within these entities. Burden of proof The Supreme Court of Justice, in the sentence of 30 January 2001, indicated that the claimant was responsible for demonstrating the existence of the contract, if this was the origin of the claim, as well as of the damage or loss sustained. However, with respect to the relation of causality, the Court refrained from establishing absolute evidential rules, as it considered that cases would exist where there would be reasonable doubt as to the burden of proof. There may be cases were the claiming patient and the defendant doctor may be required by the court to work together in providing the evidence to assist the court reach a decision. Matters must be analysed on an individual case by case basis. Jurisdiction Health services can be provided both by public and private entities. In the event of a claim against a public entity, it must be brought before the contentious-administrative courts, with the hospital being an independent legal entity. A claim against a private hospital must be brought before the civil courts in accordance with civil jurisdiction rules. Insurance In Colombia it is not a legal obligation for health professionals to have professional indemnity policies to practise their profession. However, in practice, it is increasingly common for this type of policy to be required. Generally, the main stakeholders in the health system in the country are EPS (health service administration companies), ARS (contributory regime health service administrators) and IPS (health service provision institutions). EPSs and ARSs contract health service provision from IPSs, which are the institutions providing services to users. Although there is no legal obligation to acquire professional indemnity policies, these entities do require that med mal policies be taken out. Thus, EPSs and ARSs require that the IPS have professional indemnity
cover in place, whilst the IPS in turn requires that doctors or health
professional take out a policy with the same content. Generally this type
of insurance covers the insured party’s legal liability arising from
involuntary omissions or errors committed within the insured premises or
by the professionals linked or attached thereto (when the insured party is
an organisation). 
Costa Rica In Costa Rica, medical services may be provided through a private company or through the social security system by means of the Caja Costarricense del Seguro Social (CCSS), a state entity which offers full cover for illness, so-called old age assistance, death and maternity. The jurisdiction depends on whether the entity is private or public, private cases being held before any civil court and the public cases before the contentious administrative courts. In both cases, if there are signs of a criminal offence (generally, homicide or injury due to professional imprudence), the doctor may be held individually liable through a criminal proceeding. In the majority of cases, when compensation for a doctor’s civil liability is sought, it is due to an offence being committed which produces civil consequences, such as damages and prejudice. In determining liability arising from medical actions a series of fundamental points must be considered: Best endeavours or results obligation? Best endeavour obligations are the most frequent and exceptionally result obligations can be imposed. It has been established by precedent that: “what the doctor promises is diligent activity, not a success or relief or the achievement of a result; it is also true that outside these cases (therapeutic or curative surgery and in general what is called medical assistance), in other the guarantee of an effective result is part of the service provided (satisfaction medicine and aesthetic or beauty operations).” (Sentence 801 of 20 November 2006, Chamber I of the Court). Liability also varies depending on whether the private or public system is used. For the public system, through the CCSS, precedent tells us that: “when public services or administrative authorities, cause damage to a third party, the state must be liable, unless a cause for exemption is operative. Here the well-known series of failures enters into play, where the personal failure of the employee, in occupying his position, or with the use of resources or instruments provided by the administration (causal connection) commit the state’s assets (understood in the widest sense).” (Sentence 606 of 7 August 2002, Chamber I of the Court). Burden of proof In the same way, the burden of proof varies according to the type of obligation to which the patient is subject. In the case of a best endeavour obligation, the party making the claim must prove that the doctor against whom the claim was made acted contrary to good practice as a basis of the claim for compensation. For its part, when attempting to classify the obligation as being a
“result” obligation, it is precisely to distinguish the burden of proof;
the burden of proof is inverted in the case of result obligations, it
being the case: “…[I]n result obligations, it is sufficient for the
claimant to prove that the final purpose expected is not obtained, an
aspect easily observed, which clearly demonstrates failure to comply, […]
this will be obtained through the body of evidence […] which fixes the
true content of the programme of medical assistance provided.”
(Sentence 801 of 10:10 of 20/10/2006, Chamber I of the
Court). In Costa Rica, case law governs the relationship between the patient
and doctor as a contract: “…[I]n a medical services contract the
subjects are the patient and the doctor, who in exercising the autonomy of
will make an agreement in order to recover or maintain health.
Consequently, a legal connection was created under the law which leads to
reciprocal obligations and rights. To conclude it the express
manifestation of wills and mutual agreement is required, particularly the
consent of the patient, as the doctor will be acting on his body…”.
(Sentence 801 of 20 October 2006, Chamber I of the Court). Insurance Insurance cover for medical professionals’ professional indemnity are available in Costa Rica but not widely taken out since it is rare for professionals to be exposed to malpractice proceedings as there is not a culture of claiming for poor professional services. With the recent opening of the insurance market in Costa Rica (since
August 2008), we consider that this type of insurance will be offered by
other insurance entities who will be able to benefit from the current
claims experience. 
Ecuador Insurance for medical legal liability, or medical malpractice as it is also known in the media, has received an extraordinary level of interest in Ecuador during the last decade, due to growth in the provision of professional medical services. This has consequently led to legal doctrine being concerned with analysing and demarcating all legal implications of medical malpractice in various fields of law such as criminal, administrative, civil and insurance law. Given that the insurance of medical malpractice falls within the general field of legal liability insurance it is essential to determine that within the Ecuadorian legal framework there has not been significant legal development in either the civil field or that of legal liability insurance. Civil liability for medical malpractice is not explicitly regulated within the Ecuadorian Civil Code or in the Supreme Decree 1147 which contains legislation on insurance contracts; both legal texts only cover legal liability generally. Therefore, we must turn to the definition and the relationship between two key concepts: civil liability, and within this, medical malpractice. Civil Liability Civil liability in Ecuador is one of several sources of obligations, as
indicated in article 1453 of the Ecuadorian Civil Code:
Therefore, from reading this article we can understand that a party which has caused prejudice to another must compensate the consequences of this damage. They are civilly liable therefore have an obligation to compensate for the damage caused*. Carbonnier has defined it as “the obligation to compensate the prejudice caused to another” **. This being the case, for this obligation to exist, it is necessary that
three suppositions combine: The prejudice or damage, fault—being
unnecessary for cases of objective liability—and the relation of causality
between the two. With respect to negligence, this is an action or omission attributable to a person who has caused the aforementioned damage, and is another fundamental element in cases of civil liability, except for those arising from objective liability which are determined in the law; as they are not connected with medical malpractice they will not be discussed further. The third, the relation of causality and negligence is also essential and obvious as for a person to be obliged to compensate the damage caused to another, it is necessary for there to be a relationship or causal connection between the injury caused and the attributable event or negligence, that is, the relationship between the above two suppositions, injury and negligence. We can therefore conclude that legal liability is “the obligation to compensate the injury caused to another”, which exists when three fundamental elements combine: injury or damage, negligence (except for objective liability) and relation of causality. Insurance Medical malpractice is not explicitly regulated in Ecuadorian legislation, so taking out such insurance should follow the general rules for civil liability insurance. Nevertheless, this does prevent, when a legal liability agreement protecting the insured party for medical malpractice is signed, that it reflects the characteristics inherent to the medical profession (in which should be included doctors, nurses and other health professionals). In this respect, the main observation to be made is that practice in the medical profession, as with various professions, does not generate a result obligation but a best endeavour obligation. That is, the doctor cannot commit to guaranteeing a result to the patient (such as for example curing him or saving his life) but commits to use all his means (the knowledge of the medical profession) responsible and diligently in order to obtain a result which in no circumstance can be one hundred percent assured. In this respect the learned authors have been very clear—within medicine it is impossible to guarantee a result due to the wide variety of variables existing, from the diverse reactions of each human body to the uncertainty of whether a treatment or medication can actually cure or save the patient (for example in treatments against cancer). Even in aesthetic interventions where it is easier to consider result obligation, in reality it is a best endeavour obligation. As a result of this best endeavour obligation, in the case of medical malpractice it is not sufficient for a claim to succeed where the result has not been achieved, and consequent damage has been caused to the patient, as this does not mean necessarily that the health professionals have not used all means within their reach responsibly and diligently. Liability must be proven and declared through a judicial sentence which declares the existence of liability and therefore insurers obligation to pay the indemnity stipulated in the insurance agreement. Finally, it is necessary to clarify that for an insurance contract for medical malpractice to be valid, the insured party’s profession and practice thereof must be recognised by the State and the insured party must be legally authorised to practise the profession at the time of inception of the policy. This emerges from article 54 of the Supreme Decree 1147, which states this requirement for the case of professional legal liability insurance. There are few precedents which have determined the civil or criminal liability of physicians with respect to their patients or heirs in the case of the death of the former. On the contrary, most of these cases have historically been dismissed on the merits or found to be time-barred, which in fact has led to many claims against the Ecuadorian state before international courts for poor administration of justice in hearing medical malpractice cases.
* Tamayo Lombana Alberto, “Contractual and extra contractual civil liability” Ediciones Doctrina y Ley Ltda, Bogota, 2009. ** Carbonnier Jean en Tamayo Lombana Alberto, “Contractual and extra contractual civil liability” Ediciones Doctrina y Ley Ltda, Bogota, 2009. 
Mexico Background Recent developments—Conamed Although failure to follow Lex Artis invariably results in the
liability of the doctor, malpractice does not always constitute a criminal
offence, as to do so the composition of criminal-type elements is
necessary in the specific case, in accordance with the description of
criminal offences contained in the law.
It also covers legal costs and expenses for civil
claims.
The following types of claims are also excluded:
Peru A person was admitted to a state hospital due to a blood circulation problem resulting from diabetes. The doctors decided that it was necessary to amputate the left leg. The patient was taken to the operating theatre and the doctors, acting with extreme negligence, amputated the right leg, which apparently had no problems whatsoever. Of course, a few days later they were required to amputate the left leg. The victim of this act of malpractice has not yet been compensated. This case has reopened debate in Congress on the possibility of implementing compulsory insurance giving objective (no fault) coverage for damages that may be sustained by patients as a result of medical interventions, without the necessity of investigating the causes of the incident or the diligence of the doctors involved. The insurers that would cover these claims could then take action against the doctor or the healthcare establishment if they can demonstrate negligence. The debate has been opened, but in the short term no resolution on this matter is expected. In connection with the liability system applicable to health professionals in Peru, it is important to take into consideration that in accordance with article 36 of the General Health Law (Law 26842) healthcare professionals, technicians and auxiliaries are liable for the damage and prejudice they cause to the patient through the negligent, imprudent and unskilled exercise of their activities. It is clear from the content of the rule in question that the obligation assumed by healthcare professionals with respect to their patients is a best endeavour obligation and not a result obligation. The fact that the damage to be compensated must be caused by negligent conduct necessarily leads us to the matter of proof of the cause of the damage. The law treats the matter of proof of negligence differently, but to the same effect, depending on whether the claim is in the contractual or extra-contractual sphere. In the first case, in accordance with article 1329 of the Civil Code there is a presumption that the breach (causing the damage) is a result of ordinary negligence. In the event of extra-contractual liability, article 1969 of the Civil Code establishes that it is the author of the damage who must provide the defence against negligence. It will not always be easy to establish whether the patient-doctor
relationship is contractual or extra-contractual. Thus for example there
are differences between the relationship that emerges when a patient is
admitted unconscious in an emergency and requires urgent attention, in
contrast with the relationship developed between the doctor and his
patient in public health establishments. In relation to the liability of health establishments, it is important to take into account that article 49 of the General Health Law establishes that they will be jointly and severally liable for damages caused by negligent, imprudent or unskilled exercise by healthcare professionals, technicians and auxiliaries of their activities, with whom they have a contractual relationship of dependency employee / employers. The rule has not foreseen the case of doctors who just rent the premises, imposing liability to the establishment for an act of malpractice in this situation will be more difficult. As can be understood from the content of this report, medical
malpractice claims are only developing in Peru and as yet there is no
widespread practice of insuring these risks. This partly explains the
efforts in Congress to impose compulsory insurance as discussed above.
Venezuela There is no significant doctrine or case law in Venezuela in connection with doctors’ professional liability for malpractice. There is some case law from the Criminal Cassation Chamber of the Supreme Court of Justice, dismissing an alleged criminal action for medical negligence. There is also some case law from courts of first instance discussing the subject of medical legal liability for malpractice. This case law, based on article 118 of the Law on Medical Practice, seemed to adopt the criteria that it is a legal (statutory) liability more than a contractual liability. This article establishes: The disciplinary and administrative penalties shall be applied without prejudice to the civil or criminal liability which arises as a consequence of the action, omission, lack of skill, imprudence or negligence in professional practice. However, despite the aforementioned case law, it should be noted that the matter of whether the liability is statutory or contractual may be open to discussion. We are inclined to consider that in at least some cases (where the patient has directly entered into an agreement with the director) the liability should be treated as contractual. It could be accepted, however, that the liability is statutory in the event that the patient does not enter into an agreement with the doctor directly, as may be the case of an anaesthesiologist in a surgical operation, or the doctor who receives an unconscious patient in an emergency room, cases where it can argued whether or not an agreement exists with the doctor. The subject in itself may be controversial. This is relevant in practice as, in accordance with the Civil Code, in contractual liability parties are held liable for predicted damages and injury or those which could have been predicted at the time of entering into the agreement. The exception is in cases of gross negligence or wilful misconduct (article 1274 of the Civil Code) whilst for extra-contractual liability, case law and doctrine have considered that liability should be imposed for all damages, even if unpredictable, as long as it is the direct consequence of the party’s actions which caused the damage (the doctor). With respect to legal liability insurance for malpractice, we should
highlight that it is not common in Venezuela, nor are claims for
malpractice.
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Key ContactsNick Thomas
Jesus Velez
Alex Guillamont
Kennedys advises in Iberian and Latin American insurance /reinsurance matters from its following offices: 25 Fenchurch Avenue, London, EC3M 5AD, UK. Tel:+44 020 7667 9667 Paseo de la Castellana nº 50, 28046 - Madrid, Spain. Tel: +34 91 523 7210 If you would like further information go to our website If your email address has changed or you would like to update your contact details, please click here To unsubscribe from this email please click here To unsubscribe from all emails please click here To read our Privacy Policy, please click here
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