Case STS 25-6-2009

No. 3404/2008
Download Judgment: English

Mr. Domingo was involved in an accident where he fractured his right femur. The Hospital of Bellvitge, where he was admitted, required patients to consent to a blood transfusion due to the risk of hemorrhage during surgery. Mr. Domingo refused a possible blood transfusion due to his religious beliefs as a Jehovah’s witness. Therefore, Mr. Domingo requested to be discharged and was transferred to a private hospital where he underwent a treatment where no blood transfusion was needed. The Hospital of Bellvitge did have a hemodilution machine which would have allowed for an autologous transfusion, a treatment which would have been acceptable to Mr. Domingo.

Mr. Domingo requested a reimbursement of the medical expenses paid to the private hospital. This was denied by the Catalan Health Services (which did not consider his treatment in the private hospital as urgent). Mr. Domingo’s  subsequent appeal of this decision was dismissed by Employment Court of Barcelona and the Social Chamber of the Supreme Court of Justice of Catalonia.

The Court differentiated the case at hand from a precedential case which had allowed for reimbursement where patients had sought alternative treatments in private hospitals due to their religious beliefs, considering that where a public hospital can provide an alternative treatment that “helps to respect the exercise of religious freedom under Art. 16 of the Spanish Constitution” such alternative treatment should be provided. First, the Court determined that in the case at hand it had not been proven that the treatment provided by the private hospital could have been provided by the public hospital. Secondly, in the case at hand, it had not been proven that the treatment acceptable to Mr. Domingo’s sensibilities which was potentially available in the public hospital was the adequate or appropriate treatment. Considering these fundamental factual differences, the Court dismissed Mr. Domingo’s cassation appeal.

“The first difference is that the foundation of the reimbursement claims has a very different factual basis. In the case of the sentence used as precedent, the appellant claimed the reimbursement of the money she paid to the private clinic, since the same surgery that she underwent here (elimination of the right carotid chemodectoma) could have been performed in the public Hospital, which had the same technique available to it.  On the contrary, in the case of Mr. Domingo, the foundation is different, since he claims the reimbursement of the “percutaneous pinning of the proximal femur”, which does not imply a blood transfusion. On the other hand, the judgment under appeal questions if this intervention was correct according to the lex artis and the appellant has not proven that it was. But the possibility of that same pinning surgery being performed in the public Hospital (that would be the comparable supposition to the sentence used as precedent) is not proven.” (page 5)

“The second difference is that in the case of the sentence used as precedent, it is proven, not only that the public Hospital had the “embolization” technique that was performed in the private clinic available to it, but also that these enabled the correct extraction of the “carotid chemodectoma” and that “the embolization techniques are frequently used in the vascular interventional radiology units.” Therefore, the existence of the technique and its goodness were proven. This is a very different situation, since Mr. Domingo’s case only proves the existence of the “hemodilution” technique in the public Hospital but it does not prove that this technique was adequate for the “osteosynthesis with an intramedullary nail” surgery, which was suggested in the Hospital of Bellvitge.” (pages 5-6)

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