Case 5299/2010

STSJCL 5299/2010
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The appellant gave birth in the Hospital Universitario of Salamanca to a child born with shoulder dystocia. She brought an administrative claim against the relevant insurance company, requesting compensation in the amount of 140,036.65 Euros. She based her claim on the facts that (a) her baby’s medical history was not completed but only included gynecologist intervention at the end of the birth, (b)  she was not informed about the option of giving birth through the vagina or by caesarean,  and (c) baby was born with shoulder dystocia.

After her claim was rejected by the Head of the Health Department of Castilla y León, the appellant appealed to the  Supreme Court of Castilla-León.

The Court set out that the standard for determining whether malpractice had occurred would be whether the principle of Lex Artis (which provided that the duty of medical professionals was the obligation of means and not the obligation of achieving results) had been violated. Relying on the medical reports filed into evidence, the Court found that the medical assistance received by the appellant had complied with the principle of Lex Artis and there was no malpractice. The reports clarified that a pregnancy was considered risky only where the conditions of diabetes, macrosomia or prolonged pregnancy were present and, outside of these conditions, the performance of a caesarean was considered unnecessary. As none of these conditions were detected in the appellant, there were no risk factors to indicate that a caesarean operation should have been undertaken. Thus, as the shoulder dystocia could not be diagnosed, the treatment was correct.

With respect to the potential informed consent infringement, the Court stated that even though, according to the Article 17 of Law 8/2003 of Castilla-León, every medical action must be consented to by the patient, the decision between vaginal birth and caesarean did not belong to the patient. The law recommended performance of the caesarean only in cases of diabetes and macrosomia and the appellant had neither of these medical circumstances. The Court also noted that the lack of informed consent in and of itself did not give rise to a compensation claim, unless unlawful injury was committed as a result. In this case, the shoulder dystocia could not be considered to be unlawful damage caused by the lack of information.

Finally, the Court stated that the assistance of the neuro-pediatrician, considered to have been required assistance by appellant in her claim statement, was not necessary. The midwife was the one who assisted the women and the gynecologist took part when complications arose, which happened in this case; thus the system had worked properly.

“The basic criterion used by the administrative litigation proceedings to determine the financial liability is Lex Artis, provided there is no other approach that could be used to determine whether the public health services have been the correct ones. This criterion is based on the basic principle supported by case-law that the duty of medical professionals is the obligation of means and not the obligation of achieving results. This means they are obligated to give medical assistance but they cannot guarantee the patient recovery..” page 3

“Everything supports the dismissal of the appeal, as no Lex Artis infringement has been proved; pregnancy could not be labeled at risky, cesarean section was not indicted, shoulder dystocia could not be diagnosed and, once it was, the treatment was correct and the physical consequences were minimal” Page  4

“The content in the law 8/2003 does not seem to allow the patient to choose whether she prefers to deliver by a cesarean or by vaginal birth; the report by the company Zurich details that many women request the a cesarean, but this request does not leave the choice with the patient and, even if the decision between vaginal birth and cesarean is not completely medical, it does not belong to the patient.” Page 5.

“In this case, once it has been proved the medical reports that the cesarean is a greater intervention whose death rate is much higher than the rate of the vaginal births, leaving the choice with the patient about how to deliver, is not justified” p. 6

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