Most citizens need medical services at any point in their lives. Doctors should practice under the so-called ‘lexartis’ which are technical rules set according to the standards accepted by the scientific community. Medical staff must adhere to these standards and take into account conditions of their practice and every patient´s case. When the lexartis is not followed they incur in negligence. As a result, you can claim responsibility for the allegedly professional recklessness.
It is important to differentiate between an obligation of means and an obligation of result in the case of Medical injury in Spain. Many judgments of the Supreme Court have ruled that in these cases it is about an obligation of means, since the obligation of the physician is to ‘make available to the patient the appropriate means and undertake to apply the right techniques with due care and precision’; and to ‘provide the patient with the necessary information to allow or reject a particular intervention’.
Recent jurisprudence has developed the theory of loss of chance, and the ruling of the Provincial Court of Madrid of 3 May 2012, among others, define it as the acts by a medical professional which were influential in the evolution of a disease, ‘depriving the patient of opportunity to recover’.
That is, they are actions by health care professionals, that have not caused their ailments, but which have influenced in the possibility of healing the patient. The medical professional is not responsible for their patient’s disease, but they will be liable where their acts affect the evolution of the same.
In short, the loss of opportunity appears when a physician’s negligence does not cause the disease, but reduces possibilities of cure. This loss of opportunity for the victim should be assessed by the court considering the circumstances of each particular case.