Below, we explain the different ways to report medical malpractice, distinguishing whether it has occurred in the field of public or private health care.


Provided that the centre, hospital or clinic where the medical negligence has occurred belongs to the public health system, in view of this nature of public administration, the claim can be made through various channels:

Criminal: the criminal procedure is the least frequent in these cases, since the negligence and the result produced must be of such a degree that it implies the commission of a crime by the doctor.
This route would be reserved for those conducts that have produced serious personal damages (injuries or death) due to serious or very serious professional negligence, in which the most elementary and primary rules of the profession have been disregarded.

In these cases, after the complaint of the injured party, the investigation phase begins, where various pieces of evidence are taken (declarations of those under investigation, witnesses, documents, intervention of the forensic doctor...) to determine whether there are indications that would allow the subsequent phase of the trial to be opened.
In the event of a conviction, the doctor and his insurer are also sentenced to pay compensation for medical malpractice, regardless of the penalty incurred (imprisonment, fine, professional disqualification, etc.). In the event that the facts are deemed not to be of sufficient magnitude to qualify them as a crime, this would not prevent subsequent recourse to civil or contentious-administrative proceedings if the prescription for the latter has been previously interrupted.
The prescription period for criminal liability will depend on the specific crime that the doctor is accused of, but in any case, care must be taken with the acquittals of the doctor responsible, because if the prescription has not been interrupted with the public administration on which it depends, the matter could have been prescribed.

Administrative and contentious-administrative route: another possibility when we are dealing with the public health service is to file a claim for financial liability against the administration to which the doctor, hospital or medical centre that has committed the negligence belongs.
Its basis is set out in 106.2 of the Constitution which states that: "Individuals, under the terms established by law, shall have the right to be compensated for any injury they suffer to any of their goods and rights, except in cases of force majeure, provided that the injury is the result of the operation of public services".
In these cases, a first procedure must be followed, which is based on the Administration to which the claim is made (Social Security or public health services of each Autonomous Community to which the claim has been transferred) until the latter issues a final administrative decision (normally a refusal). Once the administrative phase has been completed, the contentious-administrative courts can be called upon to review whether the Administration's action has been correct or whether it should be held responsible for the damage caused.

This procedure is complex and extremely long, since before being able to go to court the previous administrative procedure must be carried out, which takes a long time. Although the Law allows for the use of the contentious-administrative judicial procedure once six months have passed since the claim was filed without any resolution (due to administrative silence), both in this previous administrative procedure and in the subsequent judicial procedure, the Administration has a series of privileges, both procedural and material, which in the end weigh heavily on the final result of the claim and not precisely in favor of the victim.

For this reason, whenever possible, it is advisable to resort to civil proceedings through direct action under article 76 of the Insurance Contract Law against the insurance company of that administration, a legal shortcut of certain legal and doctrinal complexity but which has been endorsed on many occasions by the Disputes Chamber of the Supreme Court, so it is still a valid and highly recommended solution in these cases of administrative liability.
The statute of limitations in these cases is one year from the time the extent of the damage caused is known (stabilization of the injuries or death).


Medical malpractice claims can be brought either before the criminal courts (in the same cases as in the case of public health care) or before the civil courts (civil jurisdiction), either against the individual or legal entity responsible for providing the defective health care service (this can be a mutual insurance company, a commercial company, a health care insurance company, etc.) and also against the insurance company that covers the civil liability of that individual or legal entity, at a private or collective level.

In the civil jurisdiction, it will be examined whether the assumptions of non-contractual civil liability actually apply and, if so, it will be ordered to pay compensation for the damage caused. Such liability arises from the general principle alterum non laedere, i.e. the prohibition of causing damage to others, which is currently set out in 1902 of our Civil Code:
"He who by action or omission causes damage to another, intervening guilt or negligence, is obliged to repair the damage caused."
but it can also be raised from the point of view of breach of contract (contractual liability between the patient and the health services provider), extending the prescription periods to 5 years (before 15) or even 10 years in Catalonia, and can also give entry to the regulations protecting consumers and users, making the complaint a procedure that truly protects the interests of the victim, while more agile and rapid.


The prescription period for claiming medical negligence before the private health care system can vary from one to three* years (*in Catalonia) if the approach is exclusively non-contractual, or five years (after the reform in 2015 of art. 1964 of the Civil Code) at a national level, and ten years in Catalonia, counting from the moment the injured party has full knowledge of the damage caused to him/her. However, if you want to use the direct action against the insurance company exclusively, the period is much shorter, one year, and also from the time you have full knowledge of the damage.

At Coca Advocats we have extensive experience in medical malpractice claims in both the public and private health care sectors, with a high level of favourable judgments handed down by the civil courts, so you can consult us about any questions you may have on this subject.

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