Medical negligence resulting in death: reckless professional homicide in Spain (Art. 142 CP)

The death of a patient is always painful, and for the family the immediate question is whether it could have been prevented. For the healthcare professional who is accused, the charge opens criminal proceedings of considerable exposure. On both sides the legal question is the same: when does a death following a medical act cease to be a complication and become a reckless homicide under Article 142 of the Spanish Criminal Code? As criminal defence lawyers specialising in medical negligence with a fatal outcome, we explain the offence, its penalties, the evidence that decides it and the strategy, both in defence of the physician and in the family's private prosecution.

When a death is a crime and not a complication

The first, decisive point is that not every death following a medical act is a crime. Medicine operates with inherent risk: an adverse outcome may stem from the illness itself, from the severity of the condition, or from a foreseeable but unavoidable complication despite correct treatment. Criminal blame does not attach to the result in itself, but to the conduct that produces it.

There is reckless homicide where three elements coincide: a breach of the lex artis —the standard of care required of a diligent professional in those same circumstances—, a fatal outcome, and a causal link between the two, so that the death is objectively attributable to that breach of the duty of care. If any of these is missing, there is no offence.

Article 142 CP applied to medicine

Article 142 CP punishes anyone who causes another's death through recklessness, and distinguishes two levels that, in the healthcare field, carry very different consequences:

• Gross recklessness (Art. 142.1 CP). One to four years' imprisonment. Where the homicide is committed through professional recklessness, a special disqualification from practising the profession, occupation or post of three to six years is also imposed, which can mean the temporary end of the physician's career.
• Less serious recklessness (Art. 142.2 CP). Only a fine of three to eighteen months, with no imprisonment. In addition, this offence can be prosecuted only on the complaint of the injured party or their legal representative: it is not prosecuted of the court's own motion, so the family's initiative is essential to set it in motion.

The choice between the two provisions is no mere nuance: it separates imprisonment and disqualification from a simple fine. That is why the classification of the recklessness is the real battleground of these proceedings.

The line between gross and less serious recklessness

The settled case law of the Supreme Court grades recklessness by reference to the seriousness of the breach of the duty of care and the importance of the interests at stake. Gross recklessness is the flagrant and obvious breach of elementary rules of care, the kind that not even the least diligent professional would have committed: an inexcusable medication error, the failure to order basic tests in the face of warning symptoms, an intervention without the most elementary precautions.

Less serious recklessness is a lesser departure from the standard, one that does not reach that flagrant character but goes beyond the trivial. The line is case-specific and depends on the foreseeability of the risk, how easily it could have been avoided, and the degree of professionalism required. Placing the case on one side or the other of that line is often the central objective of both the defence and the prosecution.

The lex artis and the medical-legal expert report

The benchmark is not an abstract ideal but the lex artis ad hoc: what a careful professional would have done for that patient, with those means and in those specific circumstances. That is why the medical-legal expert evidence is the backbone of the proceedings.

The forensic doctor's report and the party opinions must address three essential points:

• Whether the conduct in question observed or breached the lex artis applicable to the case.
• Whether the fatal outcome was foreseeable and avoidable with diligent treatment.
• Whether there is a causal link between the breach and the death, or whether the death is due to the underlying pathology or to an unrelated causal course.

The medical records, the informed consent, the unit's protocols and the autopsy are the documentary pieces on which that expert report rests. Their correct technical reading usually decides the case, because the same clinical data can support opposite conclusions depending on which expert interprets it.

It is worth recalling that criminal blame demands a stricter standard of proof than civil clinical liability before the administrative or civil courts. It is not enough that the outcome was regrettable, or that better treatment was possible with hindsight: a criminal charge requires proof, beyond reasonable doubt, of a breach of the duty of care causally connected to the death. That evidential demand always operates in favour of the professional under investigation.

Compensation and the centre's civil liability

Alongside the criminal blame, the proceedings resolve the civil liability arising from the offence —the compensation owed to those affected by the patient's death. In practice it is quantified using the road-traffic compensation scale (Law 35/2015) as a guide, which sets death awards according to the degree of kinship, to which are added moral damage and, where appropriate, loss of opportunity: the harm of having deprived the patient of the real chances of survival that correct treatment would have given them.

A key point for the family is Art. 120.4 CP, which establishes the subsidiary civil liability of the operator of the healthcare centre —hospital or clinic— for crimes committed by its employees or staff in the course of their duties. If the criminally liable person does not pay the compensation, the centre must do so, which gives those affected an additional guarantee of recovery.

Lines of defence for the professional

The defence of the accused physician is essentially technical and rests on expert evidence. The lines we examine most often are:

1. Compliance with the lex artis. Establishing, through the medical records and expert evidence, that the treatment met the required standard and that the outcome was unavoidable in any event.
2. Breaking the causal link. Showing that the death stems from the underlying pathology, from the concurrence of other causes or from the natural course of the condition, and not from the conduct alleged.
3. Downgrading the recklessness. Arguing that, even if there was a departure, it did not reach the flagrant character of gross recklessness, bringing the case within Art. 142.2 CP, which carries only a fine.
4. Allocation of roles within the team. In team medicine, defining each participant's sphere of responsibility and the principle of trust between professionals.
5. Repair of the harm. Compensating those affected operates as a mitigating factor and facilitates agreements that bring the proceedings to a close.

The family's private prosecution

From the other side, the family and injured parties may bring a private prosecution and join the proceedings with a lawyer and court agent. Their involvement is especially relevant in this offence for two reasons: the less serious recklessness of Art. 142.2 CP can be prosecuted only if the injured party complains, and the weight of the expert evidence calls for driving the investigative steps that establish the breach of the lex artis and the causal link.

From the prosecution side, the complete medical records are requested, a party medical-legal report is produced, the autopsy and the necessary investigative measures are sought, and the civil liability is quantified and directed also against the healthcare centre under Art. 120.4 CP. A well-established loss of opportunity can sustain the claim even where the outcome was not wholly certain.

Defence and prosecution in Madrid and throughout Spain

At Alonso Sala, we are a firm devoted exclusively to criminal law, based at calle Velázquez 27, Madrid, with coverage throughout Spain. We take on both the defence of the accused healthcare professional and the private prosecution of the deceased patient's family in proceedings for reckless professional homicide, with care for the medical-legal expert evidence, the analysis of the lex artis and the quantification of civil liability. Each matter is studied individually, in light of its medical records and specific circumstances. If you are facing a situation of this kind, you can contact the firm so that we can study your case.