Justice lowers the amount with which Sergas must compensate the family: it sees “clear” that the medical care was “incorrect”, but not that death could have been avoided
The Contentious Chamber of the Superior Court of Justice of Galicia (TSXG) lowers the amount but maintains the conviction for patrimonial responsibility of the Sergas for the death ten years ago a 68-year-old patient due to various complications after a laparotomy performed at the Complexo Hospitalario Universitario de Ourense (CHUO) which showed that suffered peritonitis whose diagnosis was delayed.
The high court imposes the administration and its insurer to pay 40,000 euros for the widower and 4,000 for each of the three daughters of the deceased, which represents a total of 52,000 euros. In the first sentence, issued in October 2020 and reviewed by the TSXG in a resolution last September, the Contentious-Administrative Court 2 of Santiago de Compostela established 78,000 euros.
She asked to be evaluated at home
The plaintiffs, who requested the lump sum of 209,600 euros, argued that the patient suffered a patent care deficit. They stated that two family doctors they did not come to the house despite phone calls from the family, who requested assistance. The doctors prescribed medication on August 10 and 16, 2012, but according to the plaintiffs, this simple care caused a delay in the diagnosis of the pathology.
On August 17, 2012, the woman went by ambulance to the Urology clinic at the CHUO. Her condition was serious and she was referred to the ER. The intervened for peritonitis. He died on September 28, 2012, after a stay in the ICU and several more interventions.
The initial sentence considers “wrong” that the patient was assisted by telephone, without an assessment. “That day, August 16, the exploration would have been clearly pathological. The sooner an aseptic condition is diagnosed and the sooner the evolution is brought, it can be better & rdquor ;, the court stressed.
“Assistance at the health center was not correctwhich means that there has been malpractice & rdquor ;, he said.
The insurance company filed an appeal. defended that there is no evidence that a different action would have changed what happenedespecially in relation to assistance on August 16, when the patient’s condition was already evolving, the insurer explained.
Contradictory expert reports
A specialist in Internal Medicine issued a report that stated, among other considerations, that “in a face-to-face clinical assessment gravity would have been felt of the abdominal condition, referred to the emergency room without delay, diagnosed early of his peritonitis and avoided the complications that caused his death & rdquor ;.
Another specialist in Internal Medicine issued a report at the request of the company, and said that “even when the assistance from the primary care service was not correct, the outcome is not likely to have been different”.
“There is no complete certainty that the due treatment of this serious illness would have prevented his death,” the magistrates say in the sentence.
After analyzing the different reports and studying the arguments of the parties, the Contentious Chamber concludes that “the existence of incorrect medical attention becomes evident”. However, the TSXG adds that, given the non-coincident expert tests, “what is no longer so clear is the circumstance that the performance of the appropriate tests on the patient to find out her condition would have ended not only reaching an accurate diagnosis but that would have prevented the fatal outcome, since there is no reliable evidence to prove it, nor is there complete certainty that the due treatment of this serious illness would have prevented his death & rdquor ;.
The high court indicates that “we can only deduce the existence of a certain uncertainty about what would have happened (…) It is not proven that, if the action had been taken differently, the result would have been different, given the particular medical circumstances of the the patient that cannot be ignored either & rdquor ;, he adds.
“It has not been proven how the events would have occurred if home health care had been provided when it was requested, nor is there evidence that even if the diagnosis had been made, the fatal outcome would have been modified”
“The diagnostic means were not exhausted during the time from August 10 to 16 inclusive, a time interval in which the patient’s family requested home health care without it being provided in person, and that action has caused to be seen deprived of the possibility of receiving a different treatment that could have modified the evolution of the disease & rdquor ;.
And, at the same time, the court indicates that “it has not been proven how the events would have occurred if home health care had been provided when it was requested, or at least on day 16, when the symptoms were more evident, –pain, fever, tired legs-, nor is there evidence that even if the diagnosis had been made, the fatal outcome of death would have been modified & rdquor ;.
To determine the amount of compensation, lower than that of the first sentence, the Superior Court of Xustiza takes into account “the delay in the diagnosis and the characteristics of the case, the consequences of the facts, the age of the interested party and her previous health status & rdquor ;.