How to apply the responsibility of health administration?
A fall in the street as a result of their poor condition, a medical intervention that causes a physical impairment to the patient, an unreasonably long court proceedings ... are all cases in which the normal or abnormal functioning of a public service causes harm to a person. Well, What can be done in these cases?, ¿Puede exigirse a la Administración la compensación del daño infligido?
It was so specifically provided in our Constitution, article 106.2, and the Law 30/1992, the Legal Regime of Public Administrations and Common Administrative Procedure (hereinafter LRJ-PAC), effect until 02 October 2016, date that will be replaced by the laws 39/2015 and 40/2015.
For the Administration is liable for damage caused to an individual should be the following requirements:
1) illegality the damage suffered.
2) Causal link between the conduct of the Administration and the damage produced.
3) That said daño sea cash, evaluable economically, and sufficiently individualized.
Analizaremos dichos elementos comentando la Sentence 463/2016, of 06 July 2016, the High Court of Galicia.
The factual background were the following:
In the month of August 2011, D. Evaristo, of 35 years old, he fell on his right knee which caused a complete rupture of the anterior cruciate ligament, plus other injuries. The day 05 October 2011 it was practiced medical intervention and surgery to reconstruct the ligament, but D. Evaristo showed severe pain immediately after the operation on his right leg. It is given a medical discharge the 23 November 2011, but 31 January 2012 reenters the occasion of suffering severe pain in the leg. The pain did not subside until 22 May 2012, after implant a generator neuromodulation. The 7 September 2012 INSS told D. Evaristo in absolute permanent disability by complex regional pain syndrome. As a result of this syndrome, D. Evaristo roams with two crutches, not tolerate drafts or contact with water, so you have difficulty grooming, remain open and local air-conditioned spaces, and can not drive.
Evaristo presented claim of liability the 11 February 2013 against Sergas and administrative appeal against the implied rejection of that claim by administrative silence.
El-Administrative Court No. 1 of the Santiago de Compostela partially upheld the administrative appeal, declaring in favor of D. Evaristo compensation 150.000 €.
Against that decision were made appeals Xunta de Galicia, Zurich Insurance Company (ensuring the responsibility of the Administration) y D. Evaristo. We analyze the reasons for actions brought by the representations of the regional government and the insurance company Zurich, pues se refieren precisamente a todas las vicisitudes que podrían determinar la inexistencia de responsabilidad administrativa:
First, They refer to the possible statute of limitations to demand liability to the administration, to the extent that D. Evaristo filed the claim for damages against the 11 February 2013, more than a year having passed since the 23 November 2011, date of discharge, and therefore prescribed the right in accordance with Article 142.5 LRJ-PAC.
The High Court of Justice, however, recalls that, in accordance with the provisions of the same article, "In case of damage, physical or psychological nature, people begin within computed from healing or determining the extent of the consequences " and, appointment of established case (SSTS 12 November 2007, 22 February 2012, 2 April 2013, 4 May 2015 and 7 February 2013), rejected that plea indicating that stabilizing the damage occurred 7 March 2014, date on which begin to count the limitation period, so when presented the claim of liability had not even reached the starting day of reckoning, whenever the 11 February 2013 the injury was still in a state of evolution.
Second, They argue that there relación causal surgery performed between day 05 October 2011 and the harmful result (complex regional pain syndrome). To sustain this reason, the appellants emphasize the existence of contradictions in the reports signed by the experts provided by D. Evaristo, and they try to get the judges address the conclusions reached by the experts provided by them.
The High Court of Justice, considering that one of these experts had participated in surgical intervention 05 October 2011 and that, therefore, You could be in the interest of establishing the absence of a causal link, decides to attend an impartial opinion of the Titular Head of Clinical Neurophysiology, stating that "The tourniquet was the cause of neuropathy, causing nerve sciatic nerve injury ", thus demonstrating the existence of a causal link between the injury and the conduct of the Administration.
Thirdly, They argue that the damage is not antijuridical (namely, that there was no reason why D. Evaristo had no legal duty to bear the damage), because, only be regarded as unlawful in healthcare injury has occurred during a violation of the lex artis ad hoc (STS 9 October 2012) and in this case such infringement had not been proved, then it must be concluded that the damage is not unlawful.
against it, recalls the Superior Court, under the principle of availability and ease probation (article 217.7 LEC) and doctrine of disproportionate harm, corresponds to the Administration show that the use of tourniquet settled with established protocols and was within the usual safety standards, demonstration that did not make the Sargas and, therefore, determines that the damage suffered by D. Evaristo is considered unlawful.
Moreover, D. Evaristo uses alleging lack of reasoning as regards the reasons why the Court declares administrative litigation compensation in your favor 150.000 €, and requesting that such compensation is raised to 600.000 €.
The High Court of Justice, agreeing on the first observation, y aplicando con carácter orientativo los baremos de valoración del seguro de uso y circulación de vehículos de motor a los diferentes conceptos (days of disability, days off impeditive, permanent disability, sequels and lack of informed consent), raises compensation 300.000 €. It is therefore affirmed the assessable and individualized nature of the damage suffered. The genuineness, assessable and individualized damage was not discussed in this procedure, because these ends were accredited by the expert report part and other medical reports produced during medical treatment D own. Evaristo. Nonetheless, it must be said that the actual character was tested with the accreditation of CRPS pain; evaluability, with the possibility to realize monetarily consequential damages and lost profits; and individualized character, with that resulting from a specific action.
Finally and recapitulate, it must be remembered that in any event of damage suffered during the operation of a public service or abnormal -normal- debe comprobarse la antijuridicidad del daño, the conexión causal entre el mismo y el funcionamiento de dicho servicio, and carácter efectivo, assessable and individualized damage. And, also, Special attention should be paid to the limitation period (one year) and the day when calculating the period should start.