Medical negligence: claiming damages in public and private healthcare

Medicine is an obligation of means, not of results. The doctor and the centre are liable when they fail to apply the means and care that science reasonably makes available to them (the so-called lex artis), not for any adverse outcome. It is the repeated doctrine of the Council of State and the courts: healthcare is not an insurer of healing.

Nor is compensation paid for damages that could not be foreseen or avoided according to the state of scientific knowledge at that time (article 34.1 of Ley 40/2015).

The following scenarios do usually give rise to compensation: an error or delay in diagnosis and treatment contrary to the lex artis; the loss of opportunity (a delay or omission deprived you of a serious chance of healing or a better prognosis: that lost probability is compensated, not the entire damage); defective informed consent (if a risk materialised that you were not informed of in writing before surgery or an invasive procedure, articles 8 and 10 of Ley 41/2002, there is compensable damage even if the technique was correct); and disproportionate damage (an anomalous and inexplicable result for what the intervention was, which forces the centre to give a convincing explanation of what happened).

The route is the patrimonial liability claim against the health administration, regulated in articles 32 to 37 of Ley 40/2015 and processed in accordance with Ley 39/2015. It is submitted to the regional health service that treated you (its patrimonial liability unit), not to the court: you do not need a procurador (court representative) and there is no tasa (official fee).

Three requirements must be met: an effective, economically evaluable and individualised damage; that it is a consequence of the functioning of the health service (causal link); and that you do not have the legal duty to bear it (article 32 of Ley 40/2015).

The deadline is 1 year, but with a favourable rule: for physical or psychological damage, the year is not counted from the medical act, but from the healing or from when the extent of the after-effects is determined (article 67.1 of Ley 39/2015). A declaration of permanent disability, for example, can establish that moment.

The document must specify the injuries, the causal relationship with the care received, the economic evaluation of the damage if possible and the proposed evidence (article 67.2). If the amount claimed reaches €50,000 (or the figure set by regional law), the opinion of the Council of State or the regional consultative body is mandatory (article 81.2).

If you were treated in a private centre subsidised by the public system through a referral, the claim is also directed to the health administration responsible for the agreement.

The administration has 6 months to resolve the matter; if it does not reply, the claim is understood to be dismissed by silence (article 91.3) and the contentious-administrative route is opened, which is already judicial and is not included in this service.

In private healthcare, the route is civil. If there was a contract with the clinic or the doctor (the usual scenario: scheduled surgery, dental or aesthetic treatment, childbirth in a private clinic), the action is contractual (article 1101 of the Código Civil, the Civil Code) and expires after 5 years (article 1964.2, wording of Ley 42/2015). If there is no contractual relationship with the person who caused the damage, the action is non-contractual (article 1902) and expires in just 1 year from when you became aware of the damage (article 1968.2).

The key element is the direct action of article 76 of the Ley de Contrato de Seguro (Insurance Contract Act): you (or your heirs) can claim directly against the civil liability insurer of the doctor or the clinic, without waiting to sue the person responsible. The centre is obliged to inform you of the existence of the insurance and its content.

Before litigating, a reliable written claim is made to the centre and its insurer: this extrajudicial claim interrupts the statute of limitations (article 1973 of the Código Civil) and opens negotiations. Insurers usually respond in 1 to 3 months and many cases with a solid expert report end in a compensation agreement without a trial. This prior claim is what Managora prepares and submits for you; the subsequent civil lawsuit, if necessary, is not included.

The medical record is the basis of any claim and you have the right to obtain a complete copy, both in public and private healthcare (article 18 of Ley 41/2002). It is requested in writing from the centre; the first copy is free and must be delivered within 1 month in accordance with data protection regulations. The limits: third-party data and subjective annotations by professionals may be left out.

If the patient has died, relatives or de facto linked persons can access the record, unless the deceased had expressly forbidden it.

Request the record as soon as possible: the centre is only obliged to keep it for a minimum of 5 years from the discharge of each care process (article 17 of Ley 41/2002), although several regions extend this period. The request also leaves a reliable record of the date.

The medical expert report is the central piece of the claim: a doctor analyses the medical record, determines if the lex artis was breached and quantifies the after-effects according to the scale. Without an expert report, the claim rarely succeeds, because the administration or the insurer will oppose it with reports from their own services. Its cost is separate and varies according to the speciality and complexity of the case.

There is not yet a specific scale for healthcare damages. The law allows the scales of compulsory insurance to be used as a reference (article 34.2 of Ley 40/2015) and, in practice, administrations, insurers and courts use the valuation system of Ley 35/2015 (the traffic scale) as a guideline.

That system values three blocks: basic personal damage (days of damage and after-effect points according to age), particular personal damage (moral damage, damage to relatives, loss of quality of life) and patrimonial damage (proven expenses and loss of earnings). The amounts are updated every year: for 2026 they have risen by 2.9% (Resolution of the Directorate General of Insurance and Pension Funds of 3 February 2026).

That is why there is no single figure for negligence: the amount depends on the after-effects scored by the expert, your age, the days of healing and the proven economic impact. In cases of loss of opportunity, furthermore, the compensation is reduced in proportion to the probability of healing that was lost.

Be wary of promises of specific compensation before seeing the medical record and the expert report: no serious figure can be given without them.

First reality: a bad outcome is not enough. The claim succeeds when the expert report demonstrates substandard care, defective information or disproportionate damage. Before claiming, an honest feasibility analysis is advisable.

Second reality: the timeframes. In the public route, the administration has 6 months and it is common for it to dismiss or not reply; silence does not close the case, it opens the judicial route. In the private route, the insurer usually responds in 1 to 3 months and negotiation with a solid expert report is often the quickest way out.

Third reality: the reasonable amount is set by the scale, not by expectations. Document everything from day 1: reports, sick leave, invoices, travel and expense receipts, because patrimonial damage is only compensated if it is proven.

Managora studies your case, indicates the applicable route and deadline, prepares the claim (the patrimonial one before the health service or the one directed to the private centre and its insurer) and submits it for you, with the quantification of the damage according to the scale of Ley 35/2015. You can see the updated price of the service on the healthcare damages claim service page.