By Charlotte Reid 
The child, who was allergic to eggs, was administered propofol, an anaesthetic containing egg lecithin, without a full preoperative examination, without adequate monitoring or recording of the anaesthesia, and with a delay in providing emergency care.
The High Court has increased the amount of compensation that the insurance company Agrupación Mutual Aseguradora (AMA) will pay to the parents of a child who suffered extremely serious neurological consequences as a result of cardiac and respiratory arrest during an MRI scan under sedation at a clinic in Valladolid to €1.2 million.
The High Court’s ruling upholds the extraordinary appeal filed by the victim’s parents, who are being advised by lawyer Santiago Díez from the Patient Advocate Association, in proceedings brought for procedural irregularities, and declares the AMA’s obligation to pay €600,000 in compensation, plus interest for late payment in accordance with Article 20 of the Insurance Contracts Act (LCS) from the date of the events — 5 December 2012 — until the compensation is paid (an additional €614,000).
The Supreme Court thus penalises American Medical Assistance for its delay and increases the amount of compensation for medical negligence in relation to a minor to more than €1.2 million. This decision, according to Europa Press, represents an important milestone in the development of civil liability in the field of healthcare, as this is a highly controversial issue, with courts rarely ruling in favour of the injured party. Moreover, it entails a huge monetary compensation, as the accumulation of interest over almost a decade significantly increases the final amount to be paid by the insurer, well over €1 million.
The case dates back to December 2012, when a 15-month-old boy suffered cardiac and respiratory arrest during an MRI scan under sedation at a radiology clinic in Valladolid. Despite a known food allergy (eggs, cow’s milk, nuts and shellfish) , he was administered propofol, an anaesthetic containing egg lecithin, without a complete preoperative examination, adequate monitoring and anaesthesia documentation, and with a delay in providing emergency care.
90% DISABILITY
The child was left with 90% disability, which prompted the 91st Court of First Instance of Madrid to declare the insurer AMA directly liable, ordering it to pay €600,000 plus interest in accordance with Article 20 of the LCS from the date of the accident (5 December 2012).
After the insurance company appealed the court’s decision, the 18th Chamber of the Provincial Court of Madrid upheld the decision but changed the date on which interest was calculated, setting it at 17 April 2017, which significantly reduced the total amount of interest calculated. Thus, the Provincial Court placed an impossible burden on the parents to prove the date on which the doctor’s insurance company became aware of the facts giving rise to the claim, as if they were required to report the accident to the insurer with whom the doctor himself had contracted.
The parents, through their solicitor, appealed to the High Court, challenging this amendment on the grounds of procedural irregularities. The Civil Chamber upheld the appeal, stating that: Article 20.6 of the ZGS establishes that interest is calculated from the date of the incident; and it is the insurer, not the victims, who bears the burden of proving their ignorance of the incident, which in this case did not occur. The Chamber emphasises that, as the damage was disproportionate, the insurer should have exercised particular caution, so it is implausible that it would have ignored an accident of such seriousness.
Consequently, the Supreme Court partially overturns the appeal court’s decision and upholds the decision with interest calculated in accordance with section 20 of the UK Civil Code of 5 December 2012. The Supreme Court’s decision not only restores the correct application of Article 20 of the UK Civil Code, but also entails the payment of substantial monetary compensation: with a principal amount of €600,000, the accrued interest for late payment amounts to almost €614,000, resulting in a total amount of €1,214,000.
Santiago Diez, the solicitor handling the case, emphasises that this decision represents a “decisive strengthening of patient protection and insurer liability. It recognises that it is not enough to simply delay payments: unjustified delays have significant financial consequences. In the ongoing struggle to make those responsible pay for the negligence committed against their son, not only has justice prevailed for the affected family, but a precedent has been set that will prevent insurers from using delaying tactics to the detriment of victims.”
In the same vein, Carmen Flores, president of the association, notes that “the final compensation amount of more than €1.2 million is particularly significant given the enormous medical, rehabilitation, technical support and ongoing care needs of a child with a 90% disability. This court decision not only provides financial assistance to the family, but also sends a message of hope and justice to many people who find themselves in a similar situation and are forced to bear a huge financial burden due to the serious consequences of medical negligence.”