Error in Diagnosing an Illness during an Epidemic.

The Courts admit the lawsuit for an indemnity for damage against the hospital and the town hall.

In the month of July 2015 and in the midst of nationwide human H1N1 flu outbreak across the country, a young man who was 28 years of age at the time began to feel uneasiness in his body that included running a temperature, headaches, and difficulties in breathing, chest pains and also pains in his back and around his thorax. It was then and for that reason that he went to his nearest municipal public health facility where he was checked by an assistant paramedic. The paramedic’s conclusion was that the symptoms amounted to an inflammation of the tonsils, so he was prescribed painkillers and antihistamines, although he was not recommended to follow this up with a physician in spite of the persistent pain he felt that was consistent with the virus of human influenza. As the symptoms not only persisted but also got worse, the boy went that same night and also on the following day to the same public health facility, although he could not be checked by a physician, so the only solution they gave him was a fever–reducing treatment. In view of this scenario, the family took him to the regional hospital where he was checked by a member of the staff there, who only examined him with a stethoscope, declaring that his symptoms (even though he detected the characteristic sounds of pneumonia in his lungs) only needed anti-flu treatment, sending him back home. In view of the progressive worsening of the patient, the family took him once again to the nearest public care facility where a physiotherapist and his assistant realized the seriousness of the boy’s condition, whereupon they sent him immediately to the regional hospital with a diagnosis of pneumonia and a request for an X-ray of his thorax. It was at this last place where the patient had to be admitted to the Intensive Care Unit, but as his condition continued to get worse, he was rushed to a private clinic where his diagnosis was declared as being the bearer of the human H1N1, influenza, dying three days later.

JUDICIAL SCENARIO

In May 2017, his mother and the two brothers of the deceased person filed a civil suit for compensation for damage on a joint and several basis, against the responsible for the public health facility the patient had first gone to; it also included the physician who had checked him in the regional hospital and this last mentioned entity, claiming for tort liability as a result of a lack of service. The total sum sought amounted to 160,000,000 pesos, broken down into 80,000,000 pesos for the mother and 40,000,000 pesos each for his two brothers; as regards pain and suffering.  

In May 2019 a sentence was issued in the first instance court which admitted the lawsuit for indemnity for damage as regards the town hall and the hospital, condemning them both - joint and severally - to pay the sum of 120,000,000 pesos, broken down into 60,000,000 pesos for the mother and 30,000,000 pesos for each brother. The sentence rejected the suit concerning the physician involved, because it did not accept applying liability as a result of a lack of service that was being sought.

In July, 2020 the respective Court of Appeals confirmed the sentence in the first instance in all of its parts.

Finally, in June 2021 the Supreme Court announced its decision regarding the appeals to the higher court filed by the defendants, rejecting them both thus causing the condemnatory sentence to become final and binding.

RELEVANT ASPECTS IN THE FIELD OF MEDICAL LIABILITY - CRAWFORD - GRAHAM MILLER

Improper handling of an illness within the context of a national alert regarding the virus.

The lawsuit held that the patient went on five occasions to the public health system (both the public health facility and hospital), and he did not receive satisfaction with regard to his sufferings, even though his symptoms showed quite clearly and from the first moment that it coincided highly with the human H1N1 influenza crisis. This is an illness that had been declared as a national alert and regarding which a special proceeding had been put in place.

The sentence in the first instance (in its fourteenth whereas clause) established that “The defendants (…) did not provide the medical assistance the patient needed (…) because on several different occasions, already referred to the patient went in search of help with regard to his illness and the medical personnel on duty at the time did not comply with their job to apply diagnoses, processes or their existing medical knowledge in force and regarding influenza, so they diagnosed him as only suffering from a sore throat, despite his symptoms of running a temperature, a headache, a sore throat. What is more, he never underwent an examination of his thorax or was sent to a specialized center where they would have been able to diagnose him properly and also provide the medicine to fight his illness, in the full knowledge by everybody concerned that a national alert existed that year (2015) for everybody in our country, thus acting too little and too late”

The reproach by the court of law in this sense is severe, rejecting the plea by the hospital to the effect that patient “was concealing the real signs and symptoms as a result of having taken the oral treatment indicated”, also mentioning that whilst in that hospital “they did have the medical means and a laboratory for conducting the required examination, something that finally resulted in physiotherapy [provided by the public health facility] and which urgently ordered the patient to be transferred to the hospital with the request that a medical examination of his thorax be carried out and also a medical evaluation, several days after the first consultation”

For that reason, the court mentioned its surprise at “a patient after having gone to a hospital on five different occasions, requesting medical attention, all within four days, ends up dying in another different specialized hospital 7 days thereafter”, placing the emphasis on “the umpteen reminders of the symptoms of a 28 year old person; symptoms that did not go away over several days and which got worse as the hours passed, whilst not one hospital was able to take the decision to conduct the standard and necessary examinations or send him to a specialized center”

The arguments wielded as a result of this sentence, confirmed by the upper courts, is of great relevance in situations in which a patient needs to be examined because they feel they have all of the symptoms described as characteristic of illnesses that are circulating all over the country and regarding which alerts and warnings have been published and made known concerning the fact that it is an epidemic or even a pandemic, such as the present case with Covid-19. This sentence then just goes to show that it is necessary to exhaust, with all of the means at one’s disposal, what procedures are in force aimed at identifying the illness suffered by whomsoever appears to be having symptoms similar to those that caused the alerts or warnings.

The situation of the defendant physician. The possibility of action being taken against him.

The lawsuit filed was also aimed at the doctor who checked the patient in the public hospital where he went first of all. Regarding him, however, the sentence dismissed the suit filed, although it did so for strictly technical reasons.

As a matter of fact, the ruling considered that this health professional “acted as part of the medical team of the hospital belonging to the public health system, so he acted in his capacity as a public servant, [thus] only subject to what is set forth in article 42 of the General Bases for State Administration, so his liability cannot be called into question or applied in his respect as a result of the lack of service of the others, in view of the unique characteristics and requirements that come into play when dealing with this type of liability”

Consequently, the court - even though it considered that the physician’s acts whilst giving care to the patient were certainly worthy of rebuke - deemed that the legal status under which the lawsuit was filed and which sought to establish the liability of the bodies of the State and not the natural persons - even though they might happen to perform within it - this professional could not be brought to trial; although the hospital could be tried, and it would have to respond on behalf of the physician’s acts. For that reason, the sentence left it fairly clear that the State held the right to take action against its medical employee as a result of the indemnity it had to bear because of their acts.