Case 7026/2010

STS 7026/2010
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The petitioner’s childbirth resulted in a child with disability. The petitioner had diabetes, a history of intravenous drug use, hepatitis B and C, and an obstetric history that included two abortions and two previous eutocic (vaginal) deliveries.  When in the 35th week of her pregnancy, the petitioner went into preterm labor. The next day the decision was made to medically induce her.  The breech delivery, specifically the extraction of the head, was complicated. After first trying the Bracht maneuver and the Mauriceau maneuver, the doctors finally resorted to forceps to extract the head. The petitioner claimed that the methods used during delivery were the cause of the disability and that the disability might have been avoided if the doctors had done a caesarean section. The defense claims that the other complications (prematurity, diabetes and breech presentation) were the causes of the disability.

The case was dismissed by the Administrative Litigation Chamber of Madrid’s Supreme Court of Justice. The petitioner filed and the present Court 2010 ruled in favor of the petitioner. The insurance company declared an annulment of the proceedings under article 241 of the Organic Law of the Judiciary. This decision is on the grounds of that annulment/cassation appeal.

The Court found that there were sufficient grounds to sustain the cassation appeal, even though the doctors had conducted the vaginal delivery properly. The doctors had not considered providing a caesarean delivery and had not informed the petitioner about that option. This made her unaware of the risks carried by each of her options and unable to decide between them. The risks associated with a vaginal delivery in this case were significantly higher due to the breech delivery and the petitioner’s medical history. The Court found that not informing the petitioner about the possibility of a caesarean delivery was a violation of “lex artis,” the law of the (medical) art, and awarded damages to the petitioner and her daughter.

“[I]t cannot be said that whenever there is a breech presentation it is mandatory to perform a cesarean delivery, this is the case of the preterm labor of a diabetic mother with an obstetric history of two abortions and two eutocic deliveries. Certainly, all cesearean deliveries carry risks for the mother, but in this case, it would have prevented the serious damage that the daughter of the appelent has suffered. The second element to consider is that although the vaginal delivery was performed in accordance with the orders of those doctors attending the appellant, in compliance with the lex artis, the technical optional opinion issued by the Area of Neurology of the Hospital Niño Jesús de Madrid, on January 13 2004, after certifying a disability level of 75 % and a learning disability caused by encephalopathy, concludes that the etiology is fetal/perinatal distress.” Page 11.

“[I]t was decided to perform a vaginal delivery without warning the appellant of the risks that this procedure involves and without informing her (as they should have done) of the possibility of preventing those risks by performing a cesarean section, although this would also present some inconveniences.” Page 11.

“This was a breach of the “lex artis”, because as they did not give the mother the possibility of assuming the risk, damage was caused, which she would not have suffered if she had had the possibility to choose a cesarean delivery.” Page 12.

“[T]he infringement (the privation of the ability to decide) produces a moral damage that can be repaired economically.”  Page 12.