COMPENSATION LIABILITY OF DIRECTORS FOR THE HEALTH OF A CHILD WITH BIRTH DEFECTS NOT DETECTED IN THE ULTRASOUND .
The ruling of the Chamber for Contentious Administrative Tribunal Supemo of May 25, 2010 estimated the liability of the health authorities, by birth a girl with severe malformations not detected in basic ultrasound performed.
A) TS This ruling confirms the existence of liability of the health authorities as a result of medical care provided to the applicant during pregnancy, having had a child with a disability of 78%.
are findings of fact that all scans were made to the entry-level applicant did not allow assessing the presenting fetal malformations, as were inidóneas to make a proper prenatal diagnosis and that ultrasonography top level would have the opportunity to diagnose the malformation suffering the fetus, thus depriving parents of the option of having performed the abortion.
Declares TS can not exculpate the government because in the hospital in which the applicant was treated there were no means to practice the required proof, since the obligation of government is to serve citizens the means to get the result required by the state of science.
As regards compensation of 500,000 euros imposed on the government, derives not only from parents of child had no knowledge of fetal malformations, resulting in a compensable moral injury, but also the existence of a causal link between the failure of prenatal screening for birth defects and damage, both morally and economically, since deal a daughter with such deformities and disability that they behave, for any activity for life, produces extraordinary expenses of any kind for parents to neglect other purposes require unavoidable or very relevant by the diversion of child care resource principle not intended for such purposes.
B) For the TS in cases like we are dealing with the damage would be compensable injury established by the applicant's right to decide on the voluntary interruption of pregnancy, ie, their freedom of self-determination, which upone moral damage.
Where are tried before a congenital malformation and the result would be uncertain, but it would always proceed to the voluntary interruption of pregnancy, ie one knew what would be the result if it had acted diligence by the Administration and would have made a level IV ultrasound prenatal diagnosis, the result was not unexpected because we were facing a disease in which evolution is not known it, if not to the right of parents to decide what is best for the unborn child and for themselves.
In this case, what occurred was an incorrect delivery of care to prevent a decision to parents and thus resulted in the birth of a child with serious physical and mental health and life-long consequences for the whole family beyond what is reasonable. The diagnostic ultrasound once the level IV as recorded in the file is about 70 to 85%, ie very high (not as the expert says the administration is constantly contradicts no credibility whatsoever for his bias). Only could have talked about lack of opportunity when you really have done that level IV and ultrasound could not detect the defects on the grounds that it may, but not when not even doing the same.
Add the TS that even malformations detected after 22 weeks because there was no evidence of this despite all evidence of fetal retardation as reflected in the expert report provided by this part. If he had done the ultrasound level IV or other evidence even if at a later time and detected anomalies in this case if you could have talked about lack of opportunity because my client had been forced to weigh what he did if you decided to have the girl or go abroad to another country more permissive to terminate the pregnancy, with the possibility of the Administration claim damages for his wrong act timely.
C) are therefore two questions to resolve: The first is on whether the circumstances of the case were made by the health authorities the means for the best care to pregnant women and the care that should be required to follow the same pregnancy to prevent any eventuality during the same may arise. Even when such care should always be identical in all cases and comply with established protocols, and therefore, this case was no exception worthy of attention other than or greater, it is also true that in this case there was an element to be more alert in any case the physician in relation to the circumstances of pregnancy and pregnancy as were the age of the pregnant and it was her first pregnancy.
Administration claims that up to four scans were performed without any anomaly is detected and offering the CRI fetal growth in a range of almost normal, but it is an incontrovertible fact that these scans were in all cases of level I , while, at least that was made and carried out between weeks 18-22 had to be level IV, because in that moment of pregnancy or pregnancy is possible using this means of diagnosis, to know with a probability level that achieves a high percentage if there are abnormalities in the fetus.
fact that no diagnostic test was performed at that level and if, as stated in the expert evidence to the lawsuit, denied the assertion, otherwise, it was the only one able to predict or detect possible fetal abnormalities, it is clear that should have been done in any case, not enough to exonerate the Administration to say that in the hospital there were no means to do so, because the Administration is required to serve citizens the means to get the result required by the state of science at the time, and also because even accepting that fact, it should refer the mother to the place where the health service was able to practice that essential to test the guarantees required. And neither is acceptable as a defense of the Administration that such evidence is not one hundred percent reliable because if it offers a greater chance that the test performed, and given the order that it seeks to obtain, must do it and not settle with the level I clearly insufficient to achieve that goal.
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The two ulterior motives for co-defendant intended that the only compensation must recognize that the appellants was arising from the fact that the parents of the child were not aware of the anomalies that showed the fetus and, therefore, deprived of the opportunity if they have known to proceed voluntary interruption of pregnancy have an moral damages compensable.
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is true that the failure to provide the proof referred to the possible detection of fetal malformations as we have deprived the parents of the opportunity to consider the abortion or continue the same, and the deprivation that was easily avoidable required a specific test for it, caused them moral damage compensation, but the fact remains that even if this is so, precisely the failure to provide the required proof implies the existence of causal link between the failure of prenatal screening for birth defects and damage, both moral as experienced by the plaintiffs economic, since her daughter deal with such deformities and disability that they behave, for any activity for life, obviously, produces extraordinary expenses of any kind to his parents that force neglecting other purposes unavoidable or very relevant by the diversion of child care resources in principle not intended for such purposes. In other words, the costs of raising children does not constitute an injury under normal circumstances, but when the circumstances are separated from normal implying a much higher financial burden to the ordinary, TS understands that there may be damage and compensation proceed.
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