Medical Malpractice Criminal Law in Spain: Complete Guide 2026

Medical malpractice in criminal law is one of the most complex areas of Spanish criminal practice. When a healthcare professional - doctor, surgeon, anaesthetist, nurse or any member of the healthcare team - causes serious bodily harm or the death of a patient through breach of medical standards, they may incur criminal liability for professional negligence. As specialist criminal lawyers in medical malpractice, in this guide we explain everything you need to know in order to act.

What is criminal medical negligence?

Criminal medical malpractice arises when a healthcare professional causes harm to the patient (injury or death) as a result of breaching the duty of care required of their profession. It is not just any mistake: for it to be a criminal offence, the negligence must be serious, that is, it must constitute a significant departure from what a diligent professional would have done in the same circumstances.

The key concept is the lex artis ad hoc: the body of technical rules, clinical protocols and medical standards applicable to the specific case, taking into account:

• The professional's specialty: The same standard is not demanded of a primary care doctor as of a neurosurgeon.
• The means available: A rural hospital does not have the same resources as a leading specialist centre.
• The patient's condition: Their medical history, comorbidities and the urgency of the situation.
• The state of medical science: What medicine knew at the time of the treatment, not what was discovered afterwards.

Types of criminal medical negligence

The case law of the Spanish Supreme Court has shaped several typical scenarios of healthcare professional negligence:

1. Diagnostic error

A diagnostic error is the most frequent form of criminal medical negligence in Spain. It may take the following forms:

• Wrong diagnosis: Identifying a different condition from the real one. Classic example: diagnosing anxiety when the patient is actually suffering an acute myocardial infarction.
• Late diagnosis: Detecting the illness when it is already too late for effective treatment. The most common scenario is late diagnosis of cancers where the symptoms were already evident.
• Failure to diagnose: Discharging the patient without sufficient examination. The patient returns hours later in an irreversible condition.
• Omission of differential diagnosis: Failing to rule out the most serious conditions when symptoms may correspond to several illnesses.

The Spanish Supreme Court requires the doctor to perform a differential diagnosis when symptoms could correspond to several conditions. Not ordering the additional tests needed to rule out the most serious possibilities amounts to professional negligence.

2. Surgical malpractice

Failed surgeries caused by professional negligence include:

• Wrong-site surgery (never events): Operating on the left knee when the injury is in the right one. Case law regards this as gross negligence per se.
• Retained surgical items: Gauze, swabs, clamps or instruments left inside the patient. The counting protocol is mandatory.
• Error in surgical technique: Severing nerves, perforating adjacent organs or ligating ducts in a way not justified by the anatomical complexity.
• Anaesthetic errors: Wrong dosage, failed intubation, inadequate monitoring during the procedure.
• Lack of postoperative supervision: Failing to detect complications in time (internal bleeding, surgical wound infections).

3. Hospital negligence

Hospital negligence refers to systemic failings of the healthcare facility:

• Hospital-acquired infections: Infections contracted in hospital due to breaches of hygiene and sterilisation protocols.
• Premature discharges: Discharging a patient who still requires medical monitoring, resulting in deterioration or death.
• Lack of resources: Insufficient staff, obsolete equipment or the absence of an on-call specialist.
• Poor coordination: Communication failures between departments that delay urgent diagnoses or treatments.

4. Failure to obtain informed consent

Although the absence of informed consent is not in itself a criminal offence, it may have criminal significance where it causes real harm to the patient. If a doctor fails to inform the patient of the foreseeable risks of a procedure and those risks materialise, the omission may be treated as an element of the negligence.

What penalties does medical negligence carry?

The penalties depend on the seriousness of the negligence and on the outcome:

Type	Article CP	Penalty	Disqualification
Death by gross negligence	Art. 142.1	Prison 1-4 years	3-6 years
Serious bodily harm by negligence	Art. 152.1	Prison 1-3 years	1-4 years
Death by less serious negligence	Art. 142.2	Fine 3-18 months	Up to 3 years
Less serious bodily harm	Art. 152.2	Fine 3-12 months	Up to 3 years

The special disqualification prevents the professional from practising medicine for the period set. It is one of the most feared consequences, as it can destroy a professional career.

How do you report medical negligence?

If you or a family member has suffered the consequences of medical malpractice, these are the steps to follow:

1. Gather the documentation

Before doing anything else, request your complete medical record (you are entitled to it under Law 41/2002). It includes:

• Emergency, admission and discharge reports
• Results of diagnostic tests (blood work, x-rays, MRI scans)
• Surgical protocols and anaesthesia reports
• Nursing notes and progress entries
• Signed informed consent forms

2. Obtain a forensic medical expert report

This is the most important step. An independent forensic medical expert will analyse the medical record and produce a report determining:

• Whether there was a breach of the lex artis ad hoc
• What the harmful outcome was
• Whether a causal link exists between the medical treatment and the harm

Without this expert report, the complaint has no technical basis. The courts will not entertain generic grievances: they require scientific evidence.

3. Choose the route: criminal, civil or administrative

There are three legal routes, and the choice depends on your case:

Route	When to use it	Advantage	Drawback
Criminal	Gross negligence resulting in serious injury or death	Prison + disqualification + compensation	Harder to prove (requires gross negligence)
Civil	Private healthcare + slight or less serious negligence	Easier to prove (mere negligence suffices)	Compensation only, no prison
Administrative	Public healthcare (SERMAS hospitals, etc.)	The administration responds (with public assets)	1-year time limit, slow procedure

4. File the complaint or claim

In the criminal route, the complaint is filed with the Investigating Court or with the police. The public prosecutor will investigate whether there are indications of gross negligence. As the injured party, you may join the proceedings as private prosecution in order to actively conduct the case and claim compensation.

Limitation periods

The periods for reporting medical malpractice vary depending on the route:

• Criminal route (death by gross negligence): 5 years from when the harm and its cause became known.
• Criminal route (injury by gross negligence): 3 years.
• Civil route (private healthcare): 5 years (the general period for non-contractual liability).
• Administrative route (public healthcare): 1 year from the date on which the sequelae stabilised.

Warning: The time period does not start to run from the medical intervention itself, but from the moment the injured party knows, or could reasonably have known, of the harm and its connection to the medical treatment. This is especially relevant in late cancer diagnoses, where the patient may take months or years to discover that the disease was already detectable.

How much compensation can I claim?

Compensation for medical malpractice is calculated by reference to several heads:

• Physical harm: Permanent sequelae (loss of function, scars, limitations). Valued using the road traffic scale as an indicative reference.
• Moral harm: Psychological suffering of the patient and their family. Especially relevant in cases of death or serious sequelae in minors.
• Loss of earnings: Income lost through sick leave and temporary or permanent incapacity.
• Future medical expenses: Treatment, rehabilitation, prosthetics, home care and medication that the patient will need.
• Out-of-pocket expenses: Costs already incurred: second medical opinion, travel, hospital companion.

Compensation awards for medical malpractice can reach very significant amounts, particularly in cases of irreversible brain damage, paralysis or the death of minors. In Spain, awards range from EUR 50,000 (less serious injuries) to over EUR 1,000,000 (neonatal brain damage or avoidable death).

Defence of the healthcare professional accused

If you are a doctor, surgeon or other healthcare professional accused of negligence, it is essential to instruct a specialist criminal lawyer. The main defence strategies are:

1. Compliance with the lex artis

Show that your conduct followed the applicable clinical protocols, practice guidelines and the state of medical science. If you acted as any diligent professional would have acted, there is no negligence.

2. Complication inherent to the procedure

The adverse outcome was a known risk inherent to the medical procedure that materialised despite correct technique. Not every negative outcome is negligence: medicine has its limits.

3. Contributory fault

The patient contributed to the adverse outcome: they failed to follow medical instructions, concealed relevant information about their state of health, or abandoned the prescribed treatment without saying so.

4. Limited resources

The resources available at the healthcare facility (equipment, staff, on-call specialists) did not allow for a different course of action. This defence is particularly relevant in primary care centres and regional hospitals.

5. Atypical presentation

The disease presented with unusual symptoms that did not reasonably point to the correct diagnosis. Medicine is based on probabilities, and atypical clinical pictures can mislead even the most experienced clinician.

Liability of the hospital

Criminal liability is always individual: it is the natural person who committed the negligence (doctor, surgeon, anaesthetist) who is convicted. The healthcare facility, however, may be liable for compensation:

• Private hospital: Vicariously liable (Article 120.4 CP) if the professional was acting on the hospital's behalf. If there have been organisational failings (lack of resources, poor protocols), there may be direct civil liability.
• Public hospital: The healthcare administration is liable in damages for abnormal operation of the public service (Article 32 LRJSP). The claim is brought through the administrative route.

In practice, the most effective route for obtaining compensation from a public hospital is a liability claim against the administration itself, without going through the criminal courts. For private hospitals, the criminal route allows the facility to be joined as a vicariously liable party.

Relevant case law

Some rulings of the Spanish Supreme Court that mark out the boundaries of criminal medical malpractice:

• Not every unfortunate medical action amounts to punishable negligence. The conduct must involve a breach of the duty of care of a certain magnitude.
• A diagnostic error is only punishable when it is gross, obvious or inexcusable, not when it stems from the inherent difficulty of the case.
• Failure to perform diagnostic tests that would have revealed the actual condition and allowed effective treatment amounts to professional negligence.
• Informed consent does not exempt a professional from liability for malpractice. It only covers the risks inherent in a correctly performed procedure.

The forensic medical expert report: the key piece of evidence

In medical malpractice proceedings, the forensic medical expert report is the decisive evidence. Without a rigorous expert report establishing the breach of lex artis and the causal link, there is no viable case. The report must:

• Analyse the patient's complete medical record
• Identify the protocols and clinical guidelines applicable to the case
• Determine whether the medical treatment complied with those protocols
• Establish the causal link between the treatment and the harmful outcome
• Assess the sequelae and quantify the damage

At Alonso Sala we work with a network of forensic medical experts across the main specialties: traumatology, cardiology, oncology, obstetrics, anaesthesiology and general surgery. A rigorous expert report is essential to argue the breach of lex artis and the causal link with the evidentiary standard required by criminal courts.

Frequently asked questions

Can I bring a complaint if I cannot afford an expert?

Yes. If you qualify for legal aid, the court can appoint a court expert. However, a party-appointed expert chosen by your lawyer will usually provide a more detailed analysis tailored to your position.

Can I sue in both the criminal and civil courts at once?

Not simultaneously. The criminal route takes priority: while criminal proceedings are open, the civil action is suspended (prejudicialidad penal, criminal preliminary issue). If the criminal proceedings end in acquittal or dismissal, you can then bring the civil claim.

Do the doctor's civil liability insurance policies cover criminal convictions?

Insurance covers the civil liability (compensation), but not the prison sentence or the disqualification. The insurer pays the patient, but the doctor personally serves the sentence.

What if the negligence was committed by a resident (MIR)?

The resident is personally responsible, but the supervising consultant may share responsibility if they failed to perform the supervisory duty incumbent on them. The hospital is vicariously liable in any event.

At Alonso Sala, we represent both victims of medical malpractice and healthcare professionals facing accusations. Criminal medical malpractice is one of the most technical fields in criminal law: it requires lawyers who are equally at ease with the Spanish Criminal Code (CP) and with medicine. Call us on +34 91 078 65 74 for a specialist consultation.