A) The ruling of the Civil Division of the Supreme Court dated September 27, 2010, issued in the appeal 583/2010, states that can not be appreciate the medical liability of the surgeon sued by a cosmetic surgery, when postoperative infection arises after discharge the patient because it does not include any obligation of results, in addition to being accredited infection was a result of the healing process and not the corrective process, so that for the health of her the doctor had an obligation of means rather than result. That ruling
TS
confirms the statement that dismissed the appellant's claim, stating the lack of medical liability of the surgeon who performed a tummy tuck, understanding that the poor results are not attributable to defects or medical facilities in which they conducted the operation, but an infection arose when it was already discharged. Notes the Board that for the conditions relating to failing to declare the existence claimed responsibility, because there a consent from the patient about the risks and complications that the operation entailed, on the other hand, the an antibiotic prescription generic while still unaware of the exact bacteria causing the infection, it can not considered incorrect.
TS
confirms the statement that dismissed the appellant's claim, stating the lack of medical liability of the surgeon who performed a tummy tuck, understanding that the poor results are not attributable to defects or medical facilities in which they conducted the operation, but an infection arose when it was already discharged. Notes the Board that for the conditions relating to failing to declare the existence claimed responsibility, because there a consent from the patient about the risks and complications that the operation entailed, on the other hand, the an antibiotic prescription generic while still unaware of the exact bacteria causing the infection, it can not considered incorrect.
TS understands that in the field of cosmetic surgery but if there is an outcome that does not extend to complications resulting from the surgical process, in particular postoperative complications of surgery in the absence of relationship of causality.
B) FACTS: The plaintiff sued the plastic surgeon, and clinical claims for compensation for damages caused, considering that inadequate postoperative surgical site conducted by the plastic surgeon who had undergone abdominoplasty outcome determined as large scar and a huge deformity, leading to prolonged hospitalization treatment and many have not been able to reduce the unpleasant and inappropriate results of their intervention was just an aesthetic purpose, considering the plaintiff that the surgeon did not act with due diligence, which he also produced significant physical and psychological effects, understanding that the responsibility for the clinic comes from the contractual relationship between it and the patient through the so-called "contract clinic or hospital" without having set all necessary means to avert that outcome, while the result from their doctor's malpractice and that he had not acted in accordance with the lex artis, there, by the nature of the intervention, an outcome, considering also that there was no informed consent because the patient had not been properly informed of the possible complications of the surgery surgery.
Case Instance dismissed the claim in full, noting however that there are serious questions of fact as locative origin and evolution of the infection. So, after explaining that, if any, responsibility for the clinic would be contractual and non contractual because no contract existed between clinical and patient because the doctor who was hired directly by the clinical facilities, means that in the case of a cosmetic surgery, the ratio is close to a lease rather than construction services, which implies an outcome in relation to which, the physician's duty to inform customers about the intervention and its potential complications is even greater.
In this effect, consider that there was informed consent for although written information may be insufficient for generic, it would have been supplemented by numerous interviews between doctor and patient, it acknowledges in its application, saying the intervention has achieved the intended result was the reduction of abdomen, without prejudice to the final aesthetic result was due to a postoperative infection , whose origin has not been determined because they occurred when the patient had already been discharged and there was evidence that the surgery was free of germs without having been able to prove who was the doctor who prescribed the use of diaper elastic closure which would have led to the development of this infection. Discard
also there was a medical malpractice of inadequate treatment of infection. The prescription of a generic antibiotic, when the bacteria is still unknown exactly what caused it, said the sentence could not be considered incorrect and shows that the infection was a consequence of the healing process and not the corrective process, so that for the health of it the doctor had an obligation of means and not results.
C) The Málaga Provincial Court issued a Judgement in which it dismissed the appeal, upholding the Decision of First Instance. Understand the hearing, after considering the evidence examined, that there was informed consent because, in addition to the generic form, there were several conversations between the doctor and the patient explaining everything about the operation and its consequences, with the information provided timely and reasonable relation to the intervention and patient user, to which he highlighted the potential risks, predictable and even frequent consented to the medical act in question, noting that freedom of choice of patients is greater in cases of voluntary medical cases against necessary medical or remedial action. Also fails to note that there is a malpractice, because in the time the patient presented with discomfort, no data revealing the presence of an infection so that prophylactic antibiotic prescription was appropriate, being necessary to perform a crop only when the patient returns with the same discomfort in spite of the antibiotic. The Court further notes that has not been established that the germ had its origin in the hospital. Therefore, concludes that there is no responsibility from the patient or the clinic.
D) TS For the distinction between obligation of means and results can not be maintained in the exercise of medical activities, unless the outcome is agreed or guaranteed, even in cases closer to voluntary medical call necessary, or care, which do not appear very clear differences in the facts, especially since the appointment of the right to health as a condition of being in their aspects, psychological and social, not just physical (SSTS June 30 and November 20, 2009).
physician's obligation is to provide the patient the appropriate means, in particular provide the necessary information, taking into account that doctors operate on people, with or without changes in health, and medical intervention is subject, like all others, the random component himself of it, so that the risks or complications that may arise from the different surgical techniques used, especially aesthetics, are the same as those resulting from other types of surgery: hemorrhage, infection, scarring, pathological or problem with anesthesia. The opposite is set by the physician's responsibility as an objective nature is responsible solely on the result achieved in the implementation of the medical act, equating the damage to the unwanted result or expected, nor even less guaranteed by this intervention, regardless of any assessment of culpability and causation, which ultimately would prevent demonstrate the existence of a medical attitude perfectly adjusted to the art.
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