Dupuy, Daniel Oscar et al. v. Sanatorio Modelo Quilmes et al.

D. 640. XLIV.
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The plaintiff, in representation of his daughter Yanet Marien Dupuy, brought the case to the National First Instance Civil Court [Juzgado Nacional de Primera Instancia en lo Civil n° 52] against the Modelo Quilmes Hospital [Sanatorio Modelo Quilmes] and the Social Help Office for the National Congress Personal [Dirección de Ayuda Social para el Personal del Congreso de la Nación (D.A.S.)] and physicians Miguel Maiztegui, Daniel Morales, Eduardo Piucci y Gabriel Perales for liquidated damages from medical malpractice that caused and irreversible blindness in the plaintiff’s daughter. The premature birth of the girl of 28 weeks, combined with sepsis of 11 days that required antibiotics, and was subject to oxygen-therapy for 10 days to avoid her death, an exchange transfusion had to be done demonstrated a high risk situation. The malpractice took place because the ophthalmologist control was not performed where it would have been possible to detect the retinopathy of prematurity that occurs in premature newborns during the 32th and 48th week after birth, that correctly detected and treated avoided blindness in 2/3 of the cases.

The National First Instance Civil court admitted the claim and condemned the physicians and “Sanatorio Modelo Quilmes” to pay for liquidate damages. The respondents appealed and the Court of Appeal reduced the amount of liquidated damages due to the complexity of the case and that the disease was a combination of many factors such as the mother’s omission to pregnancy control and infectious diseases during the pregnancy.

The plaintiffs and the respondent brought an extraordinary appeal to the Supreme Court of Justice.

The Supreme Court of Justice founded that the previous conduct of the mother (omission to pregnancy control and non treated infectious diseases during the pregnancy can't be an argument to except or lower the physicians' responsibilities. An ophtamological control could have been performed by the doctors, that was not done, and that control and consequent treatment could have prevented the blindness of Yanet Dupuy. This control should have been performed because the retinopathy of prematurity is a disease of premature babies so it was predictable according to their level of expertise and knowledge that that disease could take place. It also held that the health insurance was responsible because it has a legal obligation to provide efficient health services.

The Supreme Court held that there was no reason given by the respondent to lower the liquidated damages that were reduced by the Courts of Appeal so it partially revoked its judgement.

"Que determinada la responsabilidad de los médicos por no haber efectuado el control oftalmológico que la situación requería, nada corresponde objetar a la responsabilidad endilgada
a la obra social demandada por el deber de seguridad que pesa sobre ésta, pues la Corte Suprema ha señalado que quien contrae la obligación de prestar un servicio —en el caso asistencia a la salud de la población— lo debe hacer en condiciones adecuadas para cumplir el fin en función del cual ha sido establecido y es responsable de los perjuicios que causare su incumplimiento o su ejecución irregular." Paragraph 17

"Determined the physicians' responsibility by not performing the adequate ophthalmologist control, nothing corresponds to object the health insurance responsibility for its duty of security, the Supreme Court has pointed out if someone has the obligation to provide a service - in this case health assistance to the population - it must be performed in appropriated conditions to fulfill that purpose and it responsible for the damages caused by its non-compliance or its irregular execution." Paragraph 17

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