Case STS 31-3-2010

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The child of Mr. Florentino and Mrs. Mercedes, Jesus, was diagnosed with drug-resistant epilepsy after suffering reoccurring, frequent seizures since about two years of age, which persisted in spite of numerous drugs being tried to treat it in public hospitals. Finally, in 2003, when the child was about six years old, he had surgery in a private hospital that stopped the seizures. During the period when he had severe epilepsy, Jesus had very low speaking, attention, and comprehension abilities. After the surgery, he eventually began gaining language skills and his ADHD symptoms disappeared.

The parents brought the case against the State for inadequate treatment. They contended that the public hospitals should have considered surgery, which was a known alternative to drug treatment, when the child was clearly suffering from drug-resistant epilepsy. The parents also asserted that, because of the delay in getting the surgery due to the persistence in trying different drug therapies, the child suffered more irreversible neurological damage from his seizures than he would have if he had gotten the surgery to stop the seizures sooner.

The Trial Chamber rejected the parents’ claim for damages and found that the child had received appropriate medical care in the public health sector. The Eighth Section of the Administrative Litigation Chamber of the Superior Court of Justice of Madrid dismissed the parents’ appeal, after which the plaintiffs brought a cassation appeal to this Court, the Fourth Section of the Administrative Litigation Chamber of the Supreme Court.

The Court decided that to provide “adequate” health care, the public health care system (the public hospitals) should have considered the surgery option, and should have given the parents the information about the option for surgery and the type of surgery, medical and diagnostic tests to determine whether or not to perform the surgery, and the risks and benefits of the surgery. The Court also stated that the hospital, not the parents, should have suggested the alternative treatment of surgery.

The Court awarded compensation of 200000 Euros.


“Thus, according to the article 141.1 of 30/1992 Law, we disagree with the Trial Chamber’s assessment which contends that the healthcare provided to the minor in the public sector was according to lex artis ad hoc, as well as we disagree with the Trial Chamber's decision of rejecting their claim of compensation because of administration’s liability. After two years of treating the child with the antiepileptic drugs that were available at that time without improving or stopping the evolution of the disease –once epilepsy was found and the child had started drug treatment in September 1999– public healthcare should have considered that he was suffering drug-resistant epilepsy or refractory epilepsy. In this regard,… there is evidence that such diagnosis or consideration is necessary and should have not been rejected in the circumstances of treatment time, drugs provided and no improvements showed.” Section “Legal Rational”; Fourth.

“On this basis…  the provision of adequate health care –in other words, to be aware of the state of scientific knowledge or existing techniques at that time– demanded to inform parents of surgery option, medical evaluations and diagnostic tests in order to perform surgery or reject it, the type of surgery to perform if needed and the risk/benefit ratio of surgery. Thus, parents could had taken relevant decisions knowing all this information. All the information that is discussed in points E), F) and G) of such legal rationale guarantees, without any doubt, that according to an adequate health care the information should have been provided in this case.” Section “Legal Rational”; Fourth.