Medical Negligence: When to Sue and What Compensation to Claim

If you suspect you have been the victim of medical negligence, the first question is: do I have a case? Not every adverse outcome in medicine is negligence. There is negligence only when the healthcare professional has acted below the lex artis ad hoc — that is, below the standard of care required in those specific circumstances. As lawyers experienced in criminal medical negligence, we explain when to bring a claim and what compensation you can claim.

When Is There Medical Negligence?

There is medical negligence where three elements are present:

1. Conduct contrary to the lex artis: the doctor did not act in accordance with the required standard of care (a wrong diagnosis, deficient surgery, inadequate treatment).
2. Harm to the patient: the patient suffered harm (injury, worsening, death) as a direct consequence of the conduct.
3. Causal link: the harm was caused by the medical conduct and not by the natural progression of the illness.

Clear examples of negligence

• A diagnostic error that delays the treatment of a cancer.
• Leaving surgical material inside the patient (swabs, instruments).
• Operating on the wrong side of the body.
• Failing to inform of risks and complications (lack of informed consent).
• A premature discharge that causes avoidable death or injury.
• A hospital infection caused by a breach of hygiene protocols.

Examples that are NOT negligence

• Complications inherent to a procedure, duly disclosed.
• An unfavourable progression of the illness despite correct treatment.
• Unpredictable allergic reactions not known to the patient.

What Evidence Do I Need?

Evidence is the key to any medical negligence proceedings. You will need:

1. The full medical record: request it from the hospital (they are obliged to provide it within 5 days). It includes reports, diagnostic tests, operation notes and the progress chart.
2. A medico-legal expert report: an independent medical expert analyses your case and issues a report on whether there was malpractice. It is the key piece of evidence.
3. Informed consent: were you told of the risks? Did you sign a consent form? If you did not sign one, the hospital has a serious problem.
4. Photographs and documentation: photos of scars and after-effects, invoices for subsequent treatment.

What Compensation Can I Claim?

Compensation for medical negligence includes:

Item	Description	Indicative range
Non-material damage	Suffering, distress, loss of quality of life	€10,000 - €150,000
Permanent after-effects	After-effect points under the scale	€20,000 - €500,000+
Loss of earnings	Income lost due to incapacity	Variable
Medical expenses	Corrective treatment, rehabilitation	€5,000 - €100,000
Severe disability/Death	Total dependency, death	€300,000 - €1,500,000+

Deadlines for Bringing a Claim

• Criminal route: a limitation period of 5 years from when the negligence becomes known (not from the procedure).
• Civil route: 5 years from when the affected person became aware of the harm.
• Administrative-litigation route (public healthcare): 1 year from the stabilisation of the after-effects.

Criminal or Civil Route?

• Criminal route: for serious cases (death, serious injury caused by gross negligence). It seeks the conviction of the professional and compensation.
• Civil route: for most cases. Faster and focused on obtaining the maximum compensation.
• Administrative-litigation route: if the negligence occurred in public healthcare. The claim is brought against the health administration.

We assess each case confidentially. If you believe you have suffered medical negligence, call us on +34 91 078 65 74.