A) The ruling of the Civil Division of the Supreme Court n º 669/2010, of November 4, 2010 confirms the responsibility of a specialist in gynecology and obstetrics by the bereaved mother to exercise their right to abort an informed, this lack of information connects with medical malpractice.
The Board confirms the decision appealed by Sanitas and a specialist in obstetrics and gynecology, who were sentenced to compensate the plaintiffs for medical malpractice committed by the latter during the pregnancy of the applicant, which led to him not given the opportunity to choose to terminate her pregnancy, and ended with the birth of the daughter of actors with major malformations. Regarding the insurance, according to the TS between it and the doctor there is a relationship of economic dependence and functional gives rise to the application of tort vicarious-established as the norm in the art. CC-1903.4, in the event of specific damages in connection with a wrongful or negligent act of the physician, as this has happened. As a physician, the Board understands that the mother has deprived from exercising their right to abort an informed, and this lack of information is connected with the medical negligence of not having exhausted all non-mandatory technical possibilities at their disposal to rule out the uncertainties that detecting the shortening of the upper limbs of the fetus, which constitutes a violation of the "lex artis ad hoc."
B) should also be noted that the responsibility of the insurance health care malpractice by physicians, health workers or medical centers, as indicated Case 4 December 2007 and 4 June 2009, has been acknowledged or rejected by the jurisprudence of the Salt 1st of TS based on various criteria applied, alternatively or in combination, in response to the circumstances of each case:
1) Liability for vicarious arising from the existence of a dependency relationship referred to in Article 1903 CC I and IV. The existence of a relationship dependency does not seem to doubt in cases in which the relationship of physicians with health care insurance is a relationship of labor nature. However, in most cases this relationship is typical of a lease of services between the insurer and health provider, as usually the case qualifies (SSTS of February 12, 1990, November 10, 1999). The fact that physicians provide their services with complete freedom of opinion, according to their scientific and technical knowledge, without interference from insurers, in principle supposed to answer for himself, provided they meet the right qualities and therefore must be regarded correctly selected by the employer, and provided it does not exercise a supervisory role over-activity, so any of these statements referred to some additional element, such as the fact the direct election of the doctor by the insurer.
2 º) Liability for contractual nature of contracting the insurance of medical care against their insured, usually based on assumed, more or less explicitly, that the insurer guarantee or assume a duty to direct delivery of assistance medical (SSTS of October 4, 2004, November 17, 2004), with support from the historical precedent of the contract medical insurance, as in the mutual and equal, there was no separation between management of the insurance and the provision of medical care, and the fact that Article 105 of the Insurance Contracts Act provides as property insurance health care, compared to health insurance or reimbursement, the fact that "the insurer assumes the full provision of medical and surgical services."
3) Responsibility-based health-called doctrine or principle of appearance, or advertising events that are integrated into the normative content of the contract under consumer legislation (STS November 2 1999: the insurance is contracted in response to quality assurance of services represents the company's reputation, which include obligations beyond simple health care management, and in the STS of October 4, 2004 , which takes into account explicitly ensured that proper patient care.) In all these cases, doctors act as auxiliaries to the insurer and therefore it corresponds to the responsibility for adequate provision to be required as a result of contract against the insured, since the activity of the subsidiary is committed by the debtor according to the nature of the benefit. Warranty the contractual provision is taken into account, for as objective allocation criteria, when it appears that the position of the company is not a mere intermediary, but the guarantor of the service. From this perspective, the liability of the insurer is contractual, but does not exclude the possible responsibility of health professionals from the patient jointly and severally with respect to the insurance and without prejudice to the back of this action against his deputy contract.
4) Liability arising from the existence of an insurer's direct intervention in the election of physicians or in its action (STS November 2 1999). This type of liability operates within the framework of the contractual relationship determinant of a direct responsibility of the insurer, but it is not uncommon for the reference to Civil Code provisions governing the liability for one another in the context of the tort. The ruling of June 21, 2006 based on the fact that the midwife was included in the optional box of the insurer, and other, more numerous, the provincial courts, often considered the physician enough to include the insurer's medical chart to infer the existence of liability on its part arising from the guilt in choosing.
5 º) Responsibility for implementation of Consumers and Users Act (Articles 26 and 28, as amended prior to Royal Decree 1 / 2007 of 16 November). According to the most recent case, given its specific nature, this type of liability does not affect medical events themselves, since it is inherent in applying the same standards of liability based on negligence for breach of the lex artis ad hoc. Therefore, the liability established by the consumer law applies only in relation to the organizational aspects or the provision of health services, non-medical activity itself (SSTS of February 5, 2001; March 26, 2004, November 17, 2004, January 5, 2007 and April 26, 2007).
The prosecution case is to be understood, as stated in the sentence, which by the insurance contract concluded between the health care entity co-defendant, Sanitas SA, and co-plaintiff "the insurer is obliged not only to provide assistance for the condition (disease or injury) of the insured, but also safer and more effective, thus reaching the appropriate choice of the physician is at the service of customer care that will be disappointed if the assistance received is incorrect and has serious consequences moral and material harmful to the patient, resulting from negligence of the physician chosen by the insured, giving rise to contractual liability by the insurer due to incorrect implementation of the performance of the contract. "Furthermore, the contract health care insurance requires consultation between the insurer and every one of the doctors and hospitals that make up its medical staff, which is produced by means of a lease of services, as in this case between the defendants is "establishing a relationship of dependency at least economic and functional results in the application of the tort by the act of another, established as an general in the art. 1903.4. No CC, the case of specific damages in connection with a wrongful or negligent act of the physician.
C) The TS estimates that do not go judgment rule res ipsa loquitur to establish the responsibility of the physician. What the ruling says is that it has deprived the mother to exercise their right to abort an informed and this lack of information is connected with the medical negligence of not having exhausted all the technical possibilities and optional in their power to dismiss uncertainties that detecting the shortening of the upper limbs of the fetus, what constitutes a violation of the "lex artis ad hoc "by the defendant doctor determinant of damage that has arisen in the sphere of competence, knowledge and control, not having taken all due diligence required by the profession and the duty of care inherent in medical practice discard any questions that might arise from ultrasound examination, with subsequent submission of a "false negative" to parents, who did not notice the disturbing material fact or figure that detected in the morphological ultrasound before the legal deadline set for practice of voluntary interruptions of pregnancy, and contrast it with new evidence of having observed conduct that would put the mother in the position to decide freely on whether or not to practice eugenic abortion.
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