Almost 13 million euros, the largest compensation for medical negligence in Spain: “The insurer wanted to exhaust the family” | News from Galicia

P. came into the world marked by serious medical negligence that left him blind, with severe cerebral palsy, a severe delay in his psychomotor development, epileptic seizures and respiratory problems. He is eight years old and his parents have not yet received a single euro for these damages. Although the malpractice incurred by the gynecologist at the HM Rosaleda private hospital in Santiago de Compostela was finally sentenced in 2020, the insurer Segurcaixa Adeslas did not record any payment in all this time, not even the minimum established by law. A court has just sentenced this company to compensate the family with almost 13 million euros, a health compensation that has become the largest in history in Spain and doubles the amount of the previous brands. The viacrucis that these parents have had to travel to get here partly explains this record number. The ruling, which is appealable, “opens a gap in the waterline” of these companies, warns the plaintiffs’ lawyer, Cipriano Castreje: “They were waiting to exhaust the family.”

The medical negligence was perpetrated in 2015 during a delivery that lasted 15 hours. Her mother, a public employee, was admitted at 10:30 a.m. on June 30 to this private hospital in the capital of Galicia offered by Segurcaixa Adeslas, the insurer with which the civil servants’ mutual insurance company Muface has an agreement. She had labor induced at that time and, according to the ruling that ruled on malpractice, at 11 p.m. there were clear signs of fetal distress. The cardiotocographic recording that records the pulse of the fetus and the contractions of the mother “was already indicative of an alarm or attention situation.” This technology was also the only guide the gynecologist had to know if the baby’s condition was good, since the hospital lacked the means to perform an analysis of the fetal blood pH. Despite this, and in the absence of an anesthetist on duty at the clinic, the possibility of a cesarean section was ignored and a natural birth continued to be attempted until two in the morning on July 1, even with a vacuum cleaner. When the woman was finally taken to the operating room, it was too late. Given the condition in which she was born, the baby was transferred to the neonatal ICU of the public hospital in Santiago because the private center did not even have this type of unit. The little boy required intensive care for 84 days.

The judicial journey has been long and exhausting for the family. In 2020, negligence was ruled, but that ruling led the calculation of compensation to another lawsuit. For this reason, in December 2021, when in a parallel dispute with the Xunta the child had already been granted a 100% disability, the family filed the lawsuit against Segurcaixa Adeslas. The parents requested compensation of 5.4 million plus interest for the hypoxic-ischemic encephalopathy (and its consequences) that the late cesarean section caused to the child, but the insurer objected. She alleged, among other things, that in all these years she had never been aware of the consequences suffered by the child, an argument shot down by the judge.

The ruling emphasizes that both the medical negligence and the serious damage and suffering suffered by the child at birth are included in two previous and final rulings. The magistrate recalls that the insurer even knew “directly” of the minor’s situation on the date of discharge from the ICU in September 2015 and “at that time” was able to make available to him “a representative amount of his ailments”: “The inaction of the defendant entity is not justified in any way, especially if it could access the minor’s medical history at any time during the case.” The judge rules that Segurcaixa Adeslas “should have taken charge of the claim made”, calls his opposition “unjustifiable” and reproaches him for having “considerably” postponed the family being compensated.

The family’s lawyer, who has 25 years of experience in this type of case, defends that the sentence issued on April 19 by the head of the court of first instance number 1 of Santiago, María Paz Filgueira Paz, is “a breach open on the waterline of the insurance companies”: “The finger has been put on the insurers’ sore spot: ‘Hey, you can’t be stingy.’” Castreje assures that she has received calls from colleagues from other insurers who are “very angry” because the resolution sets a precedent “that could harm them.”

In lawsuits for medical negligence, the lawyer explains, these companies do not usually make any payment before the sentence to try to “force an agreement.” This strategy has been punished by the magistrate and Castreje believes that from now on the insurers “will think a lot” about continuing to act in the same way: “I think [en Segurcaixa Adeslas] They intended to wait for the child to die. It seems inhuman, brutal to me, but what can you think? Why is it not recorded? The offers they made were ridiculous.” From a medical point of view, he continues, the ruling also sends a warning about the risks entailed by pressure to reduce the number of cesarean births. The convicted company has declined to comment on the case nor does it clarify whether it will file an appeal.

The ruling calculates compensation taking into account more than a dozen concepts, including aesthetic damage, loss of quality of life for family members, the need to purchase a new home or future healthcare expenses. Regarding the latter, the insurer alleged to reduce the bill that the child’s life expectancy “does not seem greater than about 17 years”, an argument rejected by the judge as being based on “totally random factors.” Segurcaixa Adeslas also refused to pay interest since the negligence occurred in 2015 and raised it only, and at most, from the notification of the lawsuit, that is, seven years less. However, the judge orders the company to pay interest from the day the medical negligence was committed, which means that of the total compensation of almost 13 million, 7.5 million correspond to this concept.

This family’s struggle would have been impossible if they did not have financial resources. During all these years, this couple has had to pay out of pocket for specialized care for their son, the therapies, the prostheses, the physiotherapist, and also the experts and attorneys. If she also lost the lawsuit with costs, the payment would have plunged her into ruin, her lawyer recalls. These parents did not enjoy free justice because when they sued they were not entitled to it (now they do thanks to a 2022 Constitutional ruling). It is also not the only litigation they have had to face since they became victims of medical negligence. They have also taken the Xunta to court to recognize their son’s 100% disability. The Department of Social Policy alleged that it had gone to court because raising the disability percentage of 77% that it had granted to the little boy to the maximum was not going to give his parents “a real benefit”, that is, more help. “There must be legislative modifications so that a family is not begging for justice and assuming risks that should be borne by the person causing the damage,” concludes Castreje.

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