Medical Negligence: When to Sue and What Compensation to Claim
In this article
There is medical negligence where three elements are present: conduct contrary to the lex artis ad hoc, harm to the patient and a direct causal link between the two; not every adverse outcome is negligence. The decisive evidence is the independent medico-legal expert report, together with the complete medical record. The deadline to bring a claim is 5 years in both the criminal and civil routes, running from when the harm becomes known, and 1 year in the administrative-litigation route against public healthcare, from the stabilisation of the after-effects.
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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:
- 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).
- Harm to the patient: the patient suffered harm (injury, worsening, death) as a direct consequence of the conduct.
- 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:
- 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.
- 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.
- 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.
- Photographs and documentation: photos of scars and after-effects, invoices for subsequent treatment.
📌 The Expert Report Is Everything
Without a favourable expert report, the chances of success are very low. We work with leading medico-legal experts in each specialty.
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.
⚠️ Do Not Wait
The deadlines are strict. If you suspect you have been the victim of negligence, request your medical record immediately and consult a lawyer. The passage of time makes obtaining evidence harder.
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.
Frequently asked questions
When can you speak of medical negligence?
When three elements are present: conduct contrary to the lex artis ad hoc (below the required standard of care), actual harm to the patient (injury, worsening or death) and a direct causal link between the medical conduct and that harm. If the harm is due to the natural progression of the illness and not to the professional's conduct, there is no negligence.
What evidence do I need to bring a medical negligence claim?
The complete medical record, which the hospital must provide; the medico-legal expert report from an independent expert, which is the key piece of evidence; the informed consent form, to check whether you were told of the risks; and documentation of the harm, such as photographs of after-effects and invoices for subsequent treatment.
What compensation can I claim?
Compensation covers non-material damage, permanent after-effects valued under the scale, loss of earnings for income no longer received, and the medical expenses of corrective treatment and rehabilitation. In the most serious cases, such as severe disability or death, the amounts can be very high.
What is the time limit for claiming medical negligence?
In the criminal and civil routes, 5 years from when the negligence becomes known, not from the procedure. In the administrative-litigation route, when the negligence occurred in public healthcare, the deadline is 1 year from the stabilisation of the after-effects. You should request the medical record immediately so as not to lose evidence.
Should I choose the criminal, civil or administrative-litigation route?
The criminal route is reserved for serious cases (death or serious injury caused by gross negligence). The civil route is the most common and focuses on obtaining the maximum compensation. The administrative-litigation route applies when the negligence occurred in public healthcare, with the claim brought against the health administration.
Do you need criminal defense in this area?
We are criminal defense lawyers specializing in medical negligence. We act urgently to protect your rights.