TOPIC 1: MEDICAL AND HEALTH LAW

History and Background

The so-called medical law is a field of specialized legal knowledge, which has
recently been recognized, nationally and internationally, as an autonomous and
independent discipline, due to its evident particularities and specificities.
This term includes multiple legal realities that share, as a common element, the
fact that they originate in medical activity, whether through individual
professional practice or through institutional healthcare services. An obligatory
reference for medical law in Colombia is the study of the environment in which
national health activity takes place, its regulatory, administrative and financial
conditions; the aspects related to the legal link known as the doctor-patient
relationship and its consequences from the ethical, contractual and responsibility
point of view; the different possible relationships between the actors that make
up the Social Security System in Health, to mention just some of the interesting
issues that constitute the object of study of this innovative Specialization
program.
Health Law is a strongly emerging discipline in the health field as a result of the
interaction between the legal world and the medical world. This interrelationship
is evident in multiple facets, including the administrative organisation of health
centres, the scope of health protection, the impact on the professional sphere
and the legal responsibility of health professionals.
Along with these issues, the field of Bioethics has gained special relevance,
closely linked in its nature and origin to the world of Law, which faces the
dilemmas that continuous technological development generates both in
healthcare and in research and teaching itself.
This chapter aims to provide students with basic legal concepts that will enable
them to manage and delve deeper into the problems of our current health sector
and, at the same time, understand the scope of their actions and decisions from
the perspective of responsibility.
Following the guiding thread of professional responsibility, our aim is to cover
different aspects of the legal world related to clinical practice. Scientific
advances not only affect the doctor-patient relationship; more broadly, they
condition society's position regarding them, which is reflected in legal norms. In
this regard, it is necessary to take into account the close connection that exists
between science and law when establishing these legal regulations. Since their
origins, they are two closely interrelated areas of knowledge and, depending on
the medical knowledge of a specific historical moment, different standards have
been established to regulate the same situation.
The medical impregnation of the world of law is evident in the very life journey of
the subjects: the causes of decriminalization of abortion, independent life outside
the womb, the maturity of the minor for the exercise of the rights of personality,
the capacity to act, the imputability or the gradation of the penalties depending
on the severity of the injuries; are clear exponents of this. In more specific
matters such as clinical information, medical records or medical confidentiality, it
is the law that permeates medicine and ends up normatively imposing
organizational and conduct criteria.
We therefore have to address not only the concepts of responsibility and its
types,
We will also study how clinical documentation has been regulated recently and
what legal obligations have arisen for both professionals and patients. Until
recently, information was considered a mere requirement for consent, and
consent was considered a cause for exoneration of the physician's actions.
However, informed consent is, right now, something more: it is the maximum
expression of the right to self-determination, that is, the right to be ourselves and
to act according to our will without submitting to the mandates of another. We
will have to analyze the new social aspects of medical confidentiality in a
conception that responds to the right of citizens to privacy, moving away from
the
Old doctrines that configured it as a right of professionals. Finally, and just as an
example, we will see how it is possible to transfer responsibility to third parties
and, based on this, how the hiring of insurance policies that cover the civil
liability of the healthcare professional has become widespread.

Specialization in medical law

Specialization in medical law is essential to complement the training of different
professions that, from their particular approaches and areas of performance,
face varied, extensive and complex regulations that change every day, putting
their work at permanent risk due to outdatedness or lack of knowledge.

Medical Law
Medical law is the branch of law that deals with the standards and
responsibilities of medical professionals and the rights of patients.
It is the set of rules of different origin and rank that deal with the medical
profession and its practice from a legal perspective.
Medical law is a branch of law that studies the relationships between different
health professionals, provider institutions, insurers and all other actors involved
in the care of health service users. Medical law seeks to provide legal protection
to the different actors in the health system and provides support for the proper
legal functioning of the institutions that make up the health system.

Characteristics
1 .- Mandatory: it is mandatory and provides legal certainty.
2 .- Coercibility: uses force to ensure that law prevails.
3 .- Heteronomy: is imposed by the legislator.
4 .- Exteriority: regulates the external acts of conduct.
5 . Generality: It should benefit the majority
6 . Rationality: Acts according to a rational order seeking to achieve a certain
value.

TOPIC 2: DISCIPLINES FOR THE END

Bioethics Bioethics is the branch of ethics that is dedicated to providing the
principles for correct human conduct with respect to life, both human life and
non-human life (animal and plant), as well as the environment in which
acceptable conditions for life can exist.
In its broadest sense, bioethics, unlike medical ethics, is not limited to the
medical field, but includes all ethical problems that have to do with life in general,
thus extending its field to issues related to the environment and the proper
treatment of animals. A series of definitions have been formulated regarding the
discipline of Bioethics, one of them being the one adopted by the Regional
Bioethics Unit of the PAHO, based in Santiago de Chile and modified by the SJ
Alfonso Llano Escobar, in a specialized journal, defines Bioethics as "the
creative use of inter and transdisciplinary dialogue between life sciences and
human values to formulate, articulate and, to the extent possible, resolve some
of the problems posed by research and intervention on life, the environment and
planet Earth." However, it is worth noting that already in 1978, the Kennedy
Institute of the Jesuit Georgetown University in the United States had published
the first Encyclopedia of Bioethics in four volumes, directed by Warren Reich, a
Catholic theologian, where Bioethics is defined as the "systematic study of
human behavior in the area of life and health sciences, examined in light of
moral values and principles."

Bioethics is a relatively new discipline, and the origin of the term corresponds to
the German Protestant pastor, theologian, philosopher and educator Fritz Jahr,
who in 1927 used the term Bio-Ethik in an article on the ethical relationship of
human beings with plants and animals. Later, in 1970, the American biochemist
devoted to oncology Van Rensselaer Potter used the term bio-ethics in an article
on "the science of survival" and later in 1971 in his book Bioethics: a bridge to
the future.

What is medical bioethics?

If we agree to define ethics as the discipline that studies human behavior from a
moral point of view (from the point of view of its approach to “good” or “evil”),
then bioethics would correspond to the part of ethics related to the life sciences.
Bioethics is a broad field, in which disciplines as different as philosophy, biology,
medicine, law, ecology, anthropology, psychology, social sciences, etc.
intervene. Furthermore, interdisciplinarity gives bioethics its nature. Only in
dialogue between the human, legal, social and life sciences can ethical problems
arising from scientific and technological progress be formulated and understood
in a non-biased and unpartial manner.
The term “bioethics” was first proposed to designate a discipline that was to deal
with reflecting on the procedures necessary to ensure the survival of life (Potter).
Today, bioethics tends to split into two sub-disciplines: ecological (or
environmental) bioethics and medical bioethics, even though both often share
methodology and content. Consider, for example, the health implications of
global warming.
Bioethics and medical ethics

Is this new discipline coming to replace medical ethics, a discipline that until
recently has been guiding health professionals?
At all. On the contrary, medical ethics remains the guiding matrix and at the
same time the main part of bioethics. This is deduced from the definition of
bioethics in the “Encyclopaedia of Bioethics”: “systematic study of human
conduct in the field of life and health sciences, analyzed in light of moral values
and principles” (Reich, 1978).
Medical ethics is not only a part of bioethics, but also enjoys special relevance
within the new discipline as a whole. Due to the richness of its scientific and
human tradition - absent in the rest of bioethics - it has a special value that
cannot be ignored. The illusory pretension of constructing a “new ethics” that
would break with traditional ethics is not only unfounded, but also reveals a
notable ignorance. Certainly bioethics – and with it medical ethics – faces new
problems today, but it has the same means as always to resolve them: the
judicious use of reason and the light of values and principles consistent with the
specific way of being of man. It can't be any other way.
On the contrary, the dialoguing, tolerant and respectful attitude that presides
over the exercise of bioethics is new. This is demanded by the cultural and
ideological diversity of today's world. However, being tolerant does not mean
lowering the demands of reality, nor recognizing its authentic ethical
implications. It translates instead the awareness that only an attitude of open
and honest dialogue, respectful of the legitimate freedom of conscience, can
allow us to advance together towards the recognition of authentic values and
principles.

Fundamental principles of bioethics

In 1979, bioethicists T. L. Beauchamp and J. F. Childress,9 defined the four

principles of bioethics: autonomy, non-maleficence, beneficence and justice.
Initially, they defined that these principles are prima facie, that is, they are
binding as long as they do not conflict with each other, in which case priority
must be given to one or the other, depending on the case. However, in 2003
Beauchamp10 considered that the principles must be specified in order to apply
them to the analysis of specific cases, that is, they must be discussed and
determined by the specific case at a case-by-case level.
The four principles defined by Beauchamp and Childress are:

1. Principle of autonomy: Autonomy expresses the ability to give oneself norms

or rules without the influence of external or internal pressures. The principle of
autonomy is imperative and must be respected as a rule, except when there are
situations in which people may not be autonomous or have diminished autonomy
(people in a vegetative state or with brain damage, etc.), in which case it will be
necessary to justify why there is no autonomy or why it is diminished. In the
medical field, informed consent is the highest expression of this principle of
autonomy, constituting a right of the patient and a duty of the doctor, since the
preferences and values of the patient are essential from an ethical point of view
and imply that the doctor's objective is to respect this autonomy because it is
about the patient's health.

2. Principle of beneficence: Obligation to act for the benefit of others,

promoting their legitimate interests and eliminating prejudices. In medicine, it
promotes the best interest of the patient, but without taking into account the
patient's opinion. It assumes that the doctor has training and knowledge that the
patient lacks, so the former knows (and therefore decides) what is most
convenient for the latter. That is to say, "everything for the patient, but without
taking him into account."
The first obstacle when analyzing this principle is that it dismisses the opinion of
the patient, the first person involved and affected by the situation, disregarding
his opinion due to his lack of medical knowledge. However, individual physicians'
and patients' preferences may differ as to what constitutes harm and what
constitutes benefit. It is therefore difficult to defend the primacy of this principle,
because if medical decisions are made based on it, other valid principles such
as autonomy or justice are left aside.

3. Principle of nonmaleficence (primum non nocere): Intentionally refraining

from performing actions that may cause harm or damage to others. It is an
ethical imperative valid for everyone, not only in the biomedical field but in all
sectors of human life. In medicine, however, this principle must find an
appropriate interpretation because sometimes medical actions cause harm in
order to obtain good. So it's about not unnecessarily harming others. The
analysis of this principle goes hand in hand with that of beneficence, so that
benefit prevails over harm.
The medical implications of the principle of non-maleficence are several: having
a rigorous and constantly updated theoretical and practical training to dedicate
oneself to professional practice; researching new treatments, procedures or
therapies, to improve those already existing so that they are less painful and
harmful for patients; advancing in the treatment of pain; avoiding defensive
medicine and, with it, the multiplication of unnecessary procedures and/or
treatments. It first appears in the Belmont Report (1978).

4. Principle of justice: Treat everyone accordingly, with the aim of reducing

situations of inequality (ideological, social, cultural, economic, etc.). In our
society, although in the health field equality between all men is only an
aspiration, the aim is for everyone to be less unequal, which is why the
obligation is imposed to treat equals equally and unequals unequally in order to
reduce situations of inequality.
The principle of justice can be divided into two: a formal principle (treating equals
equally and unequals unequally) and a material principle (determining the
relevant characteristics for the distribution of health resources: personal needs,
merit, economic capacity, personal effort, etc.). Public policies are designed
according to certain material principles of justice. In Spain, for example,
healthcare is theoretically universal and free and is therefore based on the
principle of need. In contrast, in the United States, most of the population's
health care is based on individual insurance contracted with private health care
companies.
To exclude any type of arbitrariness, it is necessary to determine which
equalities or inequalities will be taken into account to determine the treatment
that will be given to each one. The patient expects the doctor to do everything
possible for the benefit of his health. But you should also know that medical
actions are limited by a situation imposed on the doctor, such as legitimate
interests of third parties.
The doctor-patient relationship is fundamentally based on the principles of
beneficence and autonomy, but when these principles come into conflict, often
due to a lack of resources, it is the principle of justice that comes into play to
mediate between them. Health policy, on the other hand, is based on the
principle of justice, and will be all the more just if it achieves greater equality of
opportunity to compensate for inequalities.

History of forensic medicine in Venezuela

The history of forensic medicine in Venezuela has a chronology that dates from
the days of Simón Bolívar and the beginnings of the Republic itself to the
present, with the creation of public and private institutions and legislation that
give rise to the current state of medical-legal compatibility.
Exposed to the technology of the times and the challenges of political
leadership, forensic medicine in Venezuela has experienced periods of scientific
and legal luminosity, as well as moments of little splendor and apathy. The main
authors of Venezuelan medical jurisprudence have promoted the legal aspects
that govern medical practice in the Bolivarian Republic of Venezuela today.
Without a doubt, Venezuelan forensic medicine is a product of the history and
culture of the times in which it was developed, and expresses the predominant
values of medical and legal practice in the country.

Forensic Medicine:
Branch of medicine that is responsible for applying medical knowledge to the
needs of law and justice.
“It is the mechanism that allows the legal system of a society to provide the
biological substrate on which it can be based”
Forensic medicine is the bridge between legal thinking and biological thinking. It
is the application of medical knowledge to judicial problems.
It is the branch of medicine that advises on biological, physical, chemical or
pathological matters to the Judiciary, administrative entities of the State and
legal persons that require it.
Forensic medicine is the discipline that carries out the theoretical and practical
study of the medical and biological knowledge necessary for the resolution of
legal, administrative, canonical, military or provisional problems, with utilitarian
propaedeutic application to these issues.

Definition, concept and function

Definition: “It is the set of all medical knowledge applicable to Civil, Labor,
Criminal Law, etc. and to the process of formation of some Laws.” "It is the
science that aims to study the problems that arise in the professional practice of
the lawyer, and whose resolution is based, totally or partially, on certain previous
medical or biological knowledge."
"It is the branch of medicine that brings together all the medical knowledge that
can be applied in pursuit of a healthy administration of justice."

Concept: “Systematic set of scientific and technical principles, through which one
or more branches of Medicine or other related sciences are used to study and
resolve specific cases, usually linked to legal or juridical situations.”

Functions of forensic medicine

1 .- expert function: It is exclusively practical, so medical knowledge must be

applied in the judicial field
2 .- Doctrinal function: Interpretation of the law already made (from the medical
and legal point of view)
3 .-scientific function: Observation, hypothesis and Conclusions.

Importance of forensic medicine

From a medical point of view, Legal Medicine. It trains health professionals who,
as experts in the medical art, advise the Courts of Justice, whether in the labor,
civil or criminal fields.
From a judicial point of view, it is manifested in the certain fact that judges, in
order to resolve legal situations submitted for their consideration, technically
require medical knowledge, scientific advice and expert reports from Forensic
Medicine Specialists, which allow them to adequately interpret expert reports, in
view of a healthy and expeditious Administration of Justice.
For the LAWYER it is of great value, since this university professional needs to
know the basic principles of this specialty that allow him to possess the
necessary tools as a litigator, and thus have an immense range of evidence in
his favor, in relation to the cases where he must act, either as a defender or as
an accuser. From a legislative point of view, Legal Medicine contributes to the
formulation of regulations in the matter that concerns it, in order to comply with
the process of creating laws and other specific regulations. This is how the
legislator, duly advised in the forensic field, will be able to draft different legal
instruments, which in their medical aspects contain situations that can be verified
by the Specialist, and where the sacred principle of the hermetic plenitude of the
law is respected.
The judicial investigative lawyer with forensic medical training will know how to
preserve those valuable elements or evidence of criminal interest for the criminal
process, in addition to being obliged to comply with what is referred to as the
chain of custody, as established in the positive legal system.

1 .-according to the nature of their performance:

a. It covers the social aspect of medicine

b. Contributes to the functioning of the administration of justice
c. Contribution to the development of laws and regulations

2 .according to the responsibility that their performance implies:

a. Moral aspects: Conviction or acquittal of the accused. Made with
care
b. Material aspects: Compliance with duties, obligations and ethical
principles

3.-according to the obligation that its function entails:

to. Act under mandate of law. The physician is exposed to sanctions
for not fulfilling his duty. Code of Forensic Medical Instruction
articles 1-2-3-7.

Division of forensic medicine:

1. Forensic Thanatology.
2. Forensic Traumatology.
3. Forensic Lesiology.
 4. Forensic Asphyxiology.
5. Forensic Gynecology.
6. Forensic Obstetrics.
7. Forensic Psychiatry.
8. Forensic Toxicology.
9. Medical-Legal Deontology.

10. Medical-Legal Criminalistics.

Health Law
It is the set of legal norms and ethical and moral precepts, of a public and private
nature, which not only regulate the activity of health service providers (workers
and institutions) in relation to the right of society in matters of health and medical
care, but also related to the regulation of Public Health through the necessary
guidelines and policies; as well as the universal control of the spread of diseases
that could compromise the individual well-being of members of society, without
discrimination, and where the health of the community prevails over individual
interest.
Health Law is a strongly emerging discipline in the health field as a result of the
interaction between the legal world and the medical world. This interrelationship
is evident in multiple facets, including the administrative organisation of health
centres, the scope of health protection, the impact on the professional sphere
and the legal responsibility of health professionals.
Along with these issues, the field of Bioethics has gained special relevance,
closely linked in its nature and origin to the world of Law, which faces the
dilemmas that continuous technological development generates both in
healthcare and in research and teaching itself.

Responsibility of healthcare professionals

By responsibility we must understand the obligation to repair the damage

caused.
Within the healthcare field, the following types of liability are usually
distinguished:
 1. Criminal Liability.
2. Civil Liability.
3. Deontological Responsibility.
4. Disciplinary Responsibility
5. Patrimonial Responsibility of the Health Administration.

As an introduction, we will briefly approach each of these forms of responsibility

and then, in a second moment, we will carry out a more detailed analysis of
those issues that may be of interest to doctors in their professional practice.

CIVIL LIABILITY: is a liability also derived from incorrect conduct, not adapted
to the lex artis, which seeks compensatory reparation for the damage caused.
This is a liability that normally generates an obligation to provide exclusively
monetary compensation. In recent years, there have been important changes in
the area of civil liability in relation to the medical world, and at this point we can
assume that it does not directly affect professionals who work only for the public
health system. For those who practice privately, it is the legal route through
which patients can turn to them to request compensation for damage they
believe has been caused to them. In this type of responsibility we are witnessing
substantial conceptual changes, such as a certain objectifying tendency and the
emergence of theses such as the reversal of the burden of proof. We will look at
these issues in more detail later.

ETHICAL RESPONSIBILITY: is that which arises from non-compliance with the

ethical standards and internal organization of professional associations by those
of us who must be compulsorily registered to practice the profession.
The issue of professional association and its sanctioning powers is an old
controversy that began in the Middle Ages with the appearance of guilds. In the
13th century, the first of what would later be called brotherhoods appeared. The
liberal tendencies of the French Revolution led to the prohibition of labour
associations, which led to the abolition of professional associations in Spain in
1808. In 1900 they were re-established, but on a voluntary basis as regards
membership, and it was not until 1917 that compulsory membership was
imposed, which will last to this day. Perhaps at this moment we are witnessing
one of the most intense crests of the wave in terms of the debate on
membership motivated, without a doubt, by the judicial sentences to health
administrations so that they pay the membership fees, considering that their
payment is compensation for reasons of service and that there is discriminatory
treatment by reimbursing them to some workers and not to others.
Whether membership is compulsory or not, the truth is that membership in a
particular College is the basis for the disciplinary powers that professional
colleges have over their members as a result of non-compliance with the rules
established in the Code of Medical Ethics and the respective Statutes. Strictly
speaking, this is a disciplinary power exercised in a relationship of special
supremacy whose acts are subject to appeal before the administrative litigation
jurisdiction.

DISCIPLINARY RESPONSIBILITY, which we referred to in the fourth point of

the classification with which we began this Introduction, is derived from non-
compliance with the internal regulations that govern companies in which doctors
and other health professionals carry out their activities as employees. It refers to
the obligation to comply with the rules of organization, schedules, work days,
establishment of duties, etc., which are the responsibility of the employer. In a
high percentage of professionals, this employer will be the state, regional or local
administration and they will be the ones with the corrective capacity through the
power to impose disciplinary sanctions that will have to be provided for in the
corresponding legal statute or, in the case of labor personnel, an agreement.
This type of responsibility must be enforced through a specific disciplinary
procedure, which is provided with important guarantees that bring it closer, in
terms of legal certainty, to criminal proceedings.

THE PATRIMONIAL RESPONSIBILITY OF THE ADMINISTRATION: implies

the obligation that it has to repair any damage that citizens may suffer. It arises
from the right of individuals to be compensated for any injury suffered in any of
their property or rights, except in cases of force majeure, provided that the injury
is a consequence of the normal or abnormal functioning of public services, with
the only requirement that the damage be effective, economically evaluable and
individualized in relation to each person or group of people.
Successive legislative reforms have forced citizens, in order to be able to
exercise this responsibility, to go directly to the corresponding public
administration, claiming compensation for damages and losses caused by the
authorities and personnel in their service. Therefore, at this time, when a user of
the public health system considers that there has been an injury to his or her
property or rights and seeks to be financially compensated for this through
compensation, he or she cannot turn to health professionals, but must do so
directly against the Health Administration.

CRIMINAL LIABILITY
Criminal liability is based on the existence of punishable conduct that must be
committed with intent or negligence. The first, deceit, means voluntariness and
intentionality.
Those who act maliciously know what they are doing and want the result
produced by their conduct. Certain crimes can only be committed intentionally. In
the health field, the Introduction to Health Law. Most lawsuits filed involve
negligent conduct that results in injury or death to a patient. These are forms of
acting in which due diligence is not observed, failing to comply with the duty of
care that must be observed and, therefore, causing damage.
The Criminal Code classifies a large number of conducts as criminal offences,
and this prior classification is an essential requirement for the existence of the
crime. That is to say, it is not enough for a conduct to be unlawful, but it must
also be described unequivocally as constituting a misdemeanor or crime.
Likewise, the Code must contemplate a specific penalty for such conduct, that is,
it must be punishable.

As we have already said, most criminal conduct observed in the professional

practice of medicine is limited to misdemeanors and crimes related to liability for
negligence. However, we will briefly look at some criminal figures related to the
practice of medicine.

The crime of failure to provide assistance.

This is a crime that, even though there are no sentences condemning a doctor
for committing it, periodically appears in the media in the most diverse ways,
generating all kinds of opinions among the public. We all have in mind the case
of doctors who refuse to leave the centre where they work to attend to an
accident victim, who is standing on the pavement leading to the centre, while
contemplating what happened through the glass window of the cafeteria while
drinking a coffee.
The Criminal Code deals with this crime in its article 1951 and, as we see, it is
not a crime that has been configured with the doctor in mind but is directed at
any citizen who does not provide the help required by the victim when the
conditions and requirements established in the type of infraction are met. It is
configured as a crime of omission, also called inactivity, in which the act of not
acting is punished, regardless of the result.
In addition to this crime, which already existed in the previous Penal Code, the
Code approved in 1995 introduced a new crime of failure to provide assistance,
which is exclusively attributable to the health professional.
In this case, the typical conduct, that is, the conduct constituting a crime, is the
refusal of assistance or the abandonment of health services. As regards the first,
there is a debate as to whether or not there is a need for assistance or a
request, or whether, on the contrary, it is sufficient for the professional to be
aware of the need for his intervention. In this sense we agree with those who
maintain that the professional must intervene whenever he is aware of the
danger to the patient's health and is exercising his function.
Regarding abandonment of services, for the crime to exist, it seems essential
that the professional must be obliged to remain in a certain and specific service.
Both forms of commission, denial of assistance and abandonment of services,
require that a serious danger or risk to people's health occurs. Furthermore,
these are crimes that can only be committed intentionally, since the professional
must know that his or her services are necessary due to the urgency,
seriousness of the situation or risk it generates.
These crimes of failure to provide assistance are crimes whose knowledge is
attributed to the Jury Court. This has produced a multitude of criticisms among
numerous authors, among which it is worth highlighting for its harshness that of
a Magistrate of the Supreme Court when he said that "the doctor's fear of the
Jury is understandable, not only because of some scandalous examples that the
media have shown us, but because its members are only required to know how
to read and write and they are going to be asked for an answer, not only about
the fact, but about the guilt of the subject in such a protean matter, which brings
to the table such difficult issues as the situation of the Resident Medical Intern,
abandonment of the operating room, even temporarily, failure to comply with
schedules, etc.

Lex artis ad hoc

This characteristic of medical liability refers to the professional's obligation to act
in accordance with the criteria of the lex artis ad hoc. This is understood as the
duty of care or due diligence with which the doctor must act within the rules of
his profession and in a specific and determined situation. The Supreme Court
has defined it as the application of the necessary and possible means in
accordance with the state of science, taking into account the specific case and
the circumstances surrounding it.
It should be emphasized that it is not enough to establish what the correct
course of action would be from the point of view of scientific knowledge alone,
but that it is also necessary to take into account the specific case, when it occurs
and under what circumstances.
There are several rulings that are issued in these terms, also maintaining that
the degree of imprudence or negligence must be graduated taking into account
the circumstances concurrent in each case.
To determine whether a doctor has acted correctly or not, the legal world asks
other professionals for their opinion in light of their scientific knowledge. This is
what is called expert evidence. In reality, what should be done is to put the
expert in the same circumstances and with the same information as the doctor
being judged.

Certainly, doing it this way would change many of the expert evidence that is
seen today and that turns out to be authentic medical treatises by virtue of which
the actions of the professional being prosecuted are made evident.
The famous case of Paula Dixon is a good example. It was a girl who was
treated by two doctors, Ton Wong and August Wallace, as a result of injuries
sustained after falling off a motorcycle.
He was diagnosed with a fractured humerus and was given a bandage to match.
They did nothing more despite Paula's insistence on asking them to calm the
severe pain she had in her chest. After the patient continued to insist, they told
her to take paracetamol and some time later they realized that she was having
severe breathing difficulties as a result of a traumatic pneumothorax caused by
several rib fractures that had not been diagnosed in the previous examinations.
Given the urgency of the case, they performed a chest puncture with a complete
lack of asepsis using table knives, a cannula and an unfolded wire hanger,
disinfecting the material with brandy. Surely any expert would classify the
conduct of these doctors as reckless if he were not warned that the events
occurred on an airplane during a transoceanic flight.

Civil liability in teamwork

According to Sánchez Caro, when several professionals treat the same patient,
as is usual in modern medicine, the delimitation of the responsibility of each of
them is done through the so-called Principle of Trust. It consists of the fact that a
doctor who acts correctly can trust that other members of the team (other
doctors, nurses, etc.) will also do the same, unless special circumstances arise
that allow one to think otherwise. This principle is a consequence of the division
of labour and the specialisation according to which each person plays his or her
role within the increasingly complex and technically advanced healthcare work.
The division of labor can be horizontal or vertical. The first refers to actions
between equals, that is, in the case of a surgical intervention, it refers to the
division of tasks between surgeon and anesthesiologist. The vertical division, to
the relationships between different levels: doctor-midwife or nurse-technician-
assistant.
The principle of trust means that everyone is responsible for what they do and,
therefore, the scope of their responsibility is limited by their specific functions
and the way they are carried out. Incorrect behavior is the responsibility of each
team member, and the others are exonerated when they act correctly. The
principle of trust breaks down when one of the members acts so incorrectly that
his behavior must necessarily be perceived by the others. In this case, liability no
longer only affects the person who acts negligently, but also extends to others
who could have avoided the damage caused. Each person is therefore
responsible for his or her actions, but is obliged to do more when the principle of
trust is broken, and this occurs when it is evident that things are not being done
well.
A characteristic element of civil liability is that it is transferable to third parties,
unlike criminal liability. When someone is sentenced to a prison sentence, fine or
disqualification, he or she must serve it personally. However, when someone is
civilly condemned to pay compensation, he does not necessarily have to do so
personally, and someone else can pay for him. By virtue of this peculiarity of civil
liability, we see how the company for which a professional works can also be
condemned to respond for the damages caused and this is the essence of
insurance through insurance policies. What is done is to hire a company or entity
to take charge of the compensation that may arise from professional
performance and generate an obligation to repair.
In addition to the duties we referred to above, we will later discuss in great detail
informed consent, professional secrecy from its civil perspective, and obligations
relating to clinical documentation and data protection.