Brescia, Noemí Luján v. Ministerio de Salud de Buenos Aires et al.

B. 100. XXI.
Download Judgment: Spanish
Country: Argentina
Region: Americas
Year: 1994
Court: Supreme Court of Justice [Corte Suprema de Justicia de la Nación Argentina]
Health Topics: Health care and health services, Health systems and financing, Hospitals
Human Rights: Right to health
Tags: Health insurance, Labor accident, Medical malpractice, Medical negligence

The plaintiff filed a suit with the Supreme Court of Justice on behalf of her father against Manuel Osvaldo Montiel(the driver of a truck), Enrique Daniel Suares (head of the medical team), the company “Dial Electromecánica”, Américo Delgado Vargas (a medical practitioner), Osvaldo Alberto Perreta (an orthopedist), and the Province of Buenos Aires to obtain liquidated damages from her father’s death who was the victim of a labor accident. The plaintiff’s father, Francisco Brescia, worked as maintenance personnel for the tennis courts of the club “Almirante Brown”, in the Province of Buenos Aires. The 16th of October of 1984, he was hit by a truck driven by Manuel Osvaldo Montiel and was trapped between a wall and the truck. After that, he was taken to a hospital called Lucio Meléndez (which depended on the Ministry of Public Health of the province of Buenos Aires). There, he was seen by the doctor on duty, Américo Delgado Vargas, and stayed in the emergency room until 17:30, when he was discharged. He was discharged because they gave him two injections and did an x-ray which showed no injury to his ribs. He died that same day, at 19:30 in his house from “chest trauma”. The autopsy revealed that the cause of death was internal bleeding, caused by lung and liver tears, caused by a blow with or against a hard element, smooth, inelastic and possibly against a part of a motor vehicle.

The insurance company of the truck, “Dial Electromecánica”, argued that they were responsible for coverage of the truck but denied the facts as explained by the plaintiff and claim that the accident was the victim’s fault, therefore the insurance company should not be responsible for the death of the victim, and thus they couldn’t be sued for liquidated damages. Enrique Daniel Suares argued that he wasn’t the head of the medical team at that time of the accident and that he did not provide medical services to the victim. Osvaldo Alberto Perreta also denied treating the victim.  Américo Delgado Vargas did not respond to the suit so the Court admitted the lawsuit against him.

The Supreme Court of Justice accepted the original jurisdiction because the Province of Buenos Aires is a co-respondent (articles 116 and 117 of the National Constitution: Section 117.- In the aforementioned cases the Supreme Court shall have appellate jurisdiction, with such regulations and exceptions as Congress may prescribe; but in all matters concerning foreign ambassadors, ministers and consuls, and in those in which a province shall be a party, the Court shall have original and exclusive jurisdiction.”)

The Supreme Court of Justice held that the driver of the truck (Manuel Osvaldo Montiel) and the insurance company of the truck (“Dial Electromecanica”) were both responsible for the victim's death.  The Court also confirmed the presumption of guilt against the driver and the insurance company (based on article 356 (1) of the Civil and Commercial Procedure Code of Argentina, article 1109, and the first and second paragraphs of article 1113 of the  Civil Code of Argentina) because the driver was responsible for causing the victim's death and he was driving the truck as an employee of the company, which was insured by "Dial Electromecanica”.  The argument of the insurance company that the accident was the "victim's fault" was dismissed because the insurance company did not prove that this was the case.


The Supreme Court of Justice found that it was not clear that the medical staff ( Enrique Daniel Suares, Américo Delgado Vargas and Osvaldo Alberto Perreta) were the ones who treated the victim.  This uncertainty led to the dismissal of the claim against them. The Province of Buenos Aires admitted that the victim went to that hospital and that the health service suppliers should comply with obligations to guarantee the right to health.  It was evident according to the findings of the Supreme Court that the hospital didn't comply with the corresponding measures to prevent the victim's death.  The hospital did not take all possible measures to save the victim's life, as is evidenced by the fact that he was only in the emergency room for 24 hours, and more medical tests should have been performed.

The Supreme Court of Justice found that the plaintiff didn't prove the she was the beneficiary of her fathers property so liquidated damages were dismissed, but the non-pecuniary damages were admitted for $55,000 (fifty five thousand Argentine pesos). This damage should be paid by the co-respondents given the fact that the plaintiff proved their responsibility, so the driver and the insurance company should pay 80% of the damage, and 20% should be paid by the Province of Buenos Aires.