By Anna Vergés Tortras, Partner at BB&V Abogados
Anna Vergés Tortras, Partner at BB&V Abogados
Signing informed consent does not mean giving carte blanche to the doctor so that, act diligently or not, do not respond to their actions.
In and out of court, in order to determine whether a medical act is susceptible to a claim, we must attend to two fundamental aspects: informed consent and the medical act itself.
The consent on your part must be signed and be complete, fully understanding that document which specifies both the benefits and the alternatives, the risks and the specific and specific complications of the intervention to which we will submit. The consent must aim to place the patient in a dominant position about the decision to submit or not to an intervention. The patient must enter the operating room knowing what is exposed, what can go well and what can go wrong, and only then we will achieve that their expectations are adjusted to the reality of the situation.
In this way the patient should also be in a position to understand that the injurious or undesirable result is not always a consequence of a deficient or negligent act of the doctor, but that the surgical act, per se, involves a series of risks that the doctor, However diligent his intervention may have been, he can not always avoid it.
On the other hand, as we said, there is "the medical act", and is that to discern if the injurious result is given by a negligent action of the doctor, we must attend what we call the "lex artis ad hoc", that is, that set of practices, in this case medical, accepted as correct and appropriate in the execution of the profession.
According to the article 1104 of the Civil Code "When the obligation does not express the diligence that has to be rendered in its fulfillment, the one that would correspond to a good father of family will be demanded." To specify the due diligence in the medical act, since the diligence The good father of a family is clearly insufficient in the medical act, the jurisprudence has been establishing that if the doctor does not provide adequate means and care in line with the state of science, will be responsible for the harmful result caused.
Also, to carry out the task of specifying due diligence, the different Action Protocols will be of great help. As the word says, are protocols by which it is collected how the doctor should act before a specific intervention or medical act. These can range from how to carry out a first assistance, tests performed before issuing a diagnosis, preoperative, postoperative to even protocols of action within the operating room. All of them are taken into account by the courts as a minimum obligation so if the doctor has followed them, and can prove it, they have a lot of won in the defense of their diligent performance before a medical malpractice claim.
Having said all the above, I emphasize the conclusion issued at the beginning of this text and that, medical liability for a negligent act is punishable per se, so it is not an obstacle to obtain a conviction for negligence the fact of having signed an informed consent, even if it is exemplary.
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