2023-04-19 09:16:12
The Criminal Chamber of the Supreme Court has put an end to the process for professional negligence of a doctor who, following the instructions of a patient, operated on the wrong knee. In a recently known sentence, the magistrates have acquitted the traumatologist considering that the victim’s interference degraded the intensity of the guilt, since with her conduct she contributed to the production of the result. In addition, they emphasize that neither the informed consent nor the referral form of the patient to the hospital determined which of the two knees should be operated on. The resolution can be consulted at this link.
The facts date back to 2017, when a traumatologist from the Aviles Hospital Foundation (Asturias) performed an arthroscopic operation on the patient’s right knee when, in reality, it should have been performed on the left knee. As a consequence, the patient suffered injuries consisting of a partial internal menisectomy of the right knee (in a part of the meniscus) from which she took 153 days to recover. In addition, she had to wait to undergo surgery on her left knee, which caused her “significant pain and suffering.”
Although the Criminal Court number 1 of Avilés sentenced the doctor in 2020 for a crime of injury due to professional negligence to three months in prison and disqualified him from practicing medicine for six months, in addition to imposing the obligation on him to compensate the patient with almost nine thousand euros, the Provincial Court of Oviedo revoked the sentence in 2021, acquitting the professional of the crime. He considered that “the incidence” that the woman had in the production of the result should reduce the doctor’s guilt.
Simple recklessness
A pronouncement for which the patient appealed in cassation before the Supreme Court, which has now considered that the contested sentence did not infringe the law, as the victim had alleged. “We are not faced with an inexcusable mistake by the doctor, a total violation of the duties linked to the the law of art, that determines the concurrence of serious negligence, not even in the face of negligence that, due to the lesser relevance of the rules violated, can be considered less serious. The incidence that the patient’s conduct had on the result determines that the agent’s fault must be degraded by at least two degrees, so that it could only constitute a simple slight imprudence, which after the reform operated by the Law Organic 1/2015, is restricted to the scope of non-contractual civil liability”, argued the magistrates, endorsing the arguments of the appealed ruling.
As they explain, “the repeated statements made by the patient about the knee that had to be operated on and the level of consciousness she was showing at that time” contributed to the production of the result, as well as the “pre-existing pathologies in both knees.” In fact, during the arthroscopy, the physician found a degenerative knee, which she proceeded to clean, and a torn meniscus. In addition, neither the informed consent nor the referral form of the patient from the Central University Hospital of Asturias to the Fundación Hospital de Avilés they specified which of the two knees should be operated on.
For all these reasons, the high court has dismissed the woman’s appeal, imposing the payment of the costs and ending the process initiated in 2018, since there is no appeal against the Supreme Court ruling.
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