Medical negligence in Spain: how to claim compensation

In Spain you have a right to compensation when a failure in your medical care causes you harm you should not have suffered. The key word is failure: a bad outcome on its own is not enough. An operation can go wrong without anyone having made a mistake. There is negligence when the doctor or the hospital departs from what good practice required and that specific error causes the harm. Here is how you claim, how long you have, and what changes depending on whether the hospital is public or private.

A bad outcome is not the same as negligence

Medicine is an obligation of means, not of results. The doctor commits to using the right means, not to curing you whatever happens. So for there to be liability, the courts ask for three things together:

• Real, provable harm.
• A failure in practice, what is called departing from the lex artis: the way of acting that medical science considers correct in that case.
• A causal link joining the failure to the harm.

Miss one of the three and the claim doesn't hold. This covers a diagnosis that arrives too late, a mistake in the operating room, a swab or an instrument left inside the body, a follow-up nobody did, a discharge given too soon. There is also one ground that stands on its own: being operated on or treated without having the risks explained to you beforehand and without your signature. That is the lack of informed consent.

The first step is to request your medical records

Spain's Ley 41/2002 on patient autonomy gives you the right to a full copy of your historia clínica, your medical record. It is the foundation everything else is built on, so ask the hospital for it in writing, as soon as you can. With it in hand, a doctor of the same specialty prepares an expert report stating whether there really was a failure and whether it caused the harm. Without that report there is no case: it is the document that turns a bad experience into a grounded claim.

Public or private healthcare: two different roads

Before anything else you need to know who treated you, because the procedure, the deadline and even the court depend on it.

If the hospital is public

You claim through responsabilidad patrimonial, the financial liability of the public administration (article 32 of Ley 40/2015). Here you don't have to point to a specific doctor or prove their fault: it is enough that the harm comes from the running of the public service and that you had no legal duty to bear it. You file a claim with the health service of your autonomous region. The administration has six months to reply. If it stays silent, the law treats that as a refusal (the silencio administrativo negativo, negative administrative silence), and from there you can take the matter to the administrative courts.

If the doctor or clinic is private

The road is the civil one. You sue the professional, the clinic or its insurer before the civil courts, and there fault and the contract that tied you to the centre are argued out. The way the compensation is calculated, though, is the same as in the public system.

The deadlines: where most claims are lost

This is the point that shuts out the most valid claims. The clock does not start on the day of the procedure, but when you truly know the extent of the harm or when the lasting effects stabilise.

• Public healthcare: one year. Set by Ley 39/2015. One year from when the harm settles or the lasting effects are confirmed.
• Private healthcare: five years, from when you know the harm (article 1964 of the Código Civil, after the 2015 reform). With one exception: if you claim directly against the doctor's insurer through the direct-action route, the deadline drops to one year.

A year sounds like a lot and runs out fast, especially while you are still recovering. Filing the claim, or even a burofax (a recorded delivery letter with legal value) demanding compensation, stops the clock and gives the expert time to work.

How much you can claim

There is no fixed tariff. The courts use, as a guide, the scale for road traffic accidents (Ley 35/2015), which is updated every year. As a guide means the judge is not bound by those tables: they can raise or lower the figure to fit the case. Compensation covers two parts. Personal harm: the days it takes you to recover, the lasting effects you are left with, the pain. And financial harm: what you lose while you can't work (the lucro cesante, loss of earnings), medical costs, help from another person, adapting your home. The better you keep every invoice and every report, the firmer the figure you claim.

If you live in Italy or you're an Italian in Spain

If the harm happened in a Spanish hospital, you claim in Spain and under Spanish law, whatever country you're from. The European Rome II regulation says so: liability for harm is governed by the law of the country where the harm occurs. To work out which court has jurisdiction, another regulation, Brussels I bis, comes in, and it generally sends the case to Spain, where the hospital you're claiming against is. Living in Italy doesn't force you to cross the border for every piece of paper: much of the process is handled through a representative. And a judgment given in Spain is recognised and enforced in Italy without a second trial. The real obstacle isn't the border: it's the language of the medical record and that one-year deadline in public healthcare, which runs the same wherever you are.

If you have any doubts, Riondato & Partners is here to help

Claiming for medical negligence means juggling short deadlines, expert reports and, at times, two countries at once. At Riondato & Partners we have spent over 45 years guiding families and companies between Italy and Spain, and we know how to read a medical case from both shores. If you believe a medical injury should never have happened, write to us and we'll look at it together.

Sources

• Ley 41/2002 on patient autonomy (BOE)
• Ley 40/2015, financial liability of the administration, art. 32 (BOE)
• Ley 39/2015, procedure and one-year deadline (BOE)
• Código Civil, art. 1964, five-year deadline (BOE)
• Ley 35/2015, injury compensation scale (BOE)
• Rome II Regulation on applicable law (EUR-Lex)