2023-12-10 02:20:55
By Agustín Navarro Fornes, lawyer.
The doctor has no obligation to obtain a result.
The doctrine of the Supreme Court contained in rulings such as 33/2015 establishes that “it is the doctor’s obligation to carry out all the necessary diagnostic tests, taking into account the state of medical science at that time, in such a way that, once the verifications that the case requires are carried out, , only the diagnosis that presents a notoriously serious error or absolutely erroneous conclusions can serve as a basis for declaring responsibility. As in the event that not all the required or required checks or examinations have been carried out.”
Therefore, the conclusion is that in a medicine of means and not of results, clinical decision-making will be based on the diagnosis, which is established through a series of tests aimed at demonstrating or rejecting a suspicion or initial hypothesis. And only the absence of evidence that appears necessary, or a diagnosis that presents a clearly serious error, can serve as a basis for declaring responsibility.
Furthermore, as the Supreme Court recalls: “Diagnostic activity entails risks of error that can remain within the limits of what is tolerable in certain cases.”
If the tests performed are those protocolized and the recommendation to perform new tests was within the provisions of such protocols, responsibility does not seem to be deduced, since “the initial diagnosis cannot be questioned due to subsequent evolution given the difficulty involved in getting the correct diagnosis.” correct, despite having used all available means to achieve it, since in every patient there is a margin of error” (SSTS February 15, 2006; October 19, 2007; March 3 and December 10, 2010).
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