The Superior Court of Justice of Castilla y León has condemned Ibermutua, an entity collaborating with Social Security, to compensate a man with 15,000 euros for not properly informing him of the risks to which he was subjected during his surgical operation and the necessary general anesthesia. Law 41/2002 requires that, in surgical interventions, consent be documented in writing as a guarantee that the patient received sufficient information, something that could not be proven in this case.
The man, 43 years old at the time of health care, was a teacher and had a personal history of high blood pressure, sleep apnea-hypopnea syndrome (SAHS) and grade 3 obesity (150 kilos). He went to the clinic after falling at home, showing a bruise on his right shoulder. After treatment and rehabilitation, the discomfort continued, so a CT scan was performed, which revealed a fracture of the humeral tuberosity, with sclerotic edges, probably chronic.
After a consultation with the traumatologist, he was told that it was necessary to undergo surgery for secondary subacromial syndrome. Thus, he was admitted to the La Luz hospital in Madrid (arranged with Ibermutua) on April 4, 2022 to undergo surgery. This surgical intervention was performed without incident but, after surgery, he suffered respiratory problems when extubated, requiring reintubation. During this process, he developed extreme bradycardia and cardiorespiratory arrest that required resuscitation maneuvers (CPR) for 15 minutes, and he was transferred to the ICU.
After discharge from the ICU, he manifested loss of vision and was diagnosed with bilateral hemianopsia and subsequently quadrantanopsia, the cause being suspected of posterior reversible leukoencephalopathy (PRES syndrome) due to high blood pressure levels, and not necessarily due to cardiac arrest.
The patient complains after discharge for medical malpractice and misinformation
After being discharged, the patient was on sick leave for more than a year, until July 2023. He was convinced that his visual consequences were due to medical malpractice, and he also reported that he was never informed of the risks of the operation or anesthesia. For this reason, in March 2023 he filed a claim for health property liability.
Ibermutua did not respond to his request and, thus, his claim fell due to administrative silence. In this situation, the only way left was to file a contentious-administrative appeal before the Superior Court of Justice of Castilla y León, which is what he did.
In this appeal, he defended that the decision to apply general anesthesia was erroneous given his risk history, arguing that regional anesthesia would have avoided intubation and cardiorespiratory arrest. He also reported that he had not been informed of the risks and alternatives, violating his right to decide. For this reason, he requested total compensation of 166,387 euros (40,000 euros for moral damage and 126,387 euros for physical consequences and damages).
For their part, Ibermutua and the clinic, which were the defendants, opposed, defending that they acted in accordance with the lex artis, that the anesthetic technique was appropriate according to clinical guidelines and that the complications were inherent unforeseeable risks. Regarding consent, they alleged that the patient was informed, although they reproached each other for the custody of the written document proving it.
The TSJ of Castilla y León recognizes compensation of 15,000 euros for disinformation
The Superior Court of Justice of Castilla y León determined that there was no medical negligence in the choice of the anesthetic technique or in the execution of the surgery. Regarding the loss of vision, they concluded that it had not been proven that it derived from cardiorespiratory arrest or anesthesia, but rather the reports pointed to a neurological cause due to hypertension (PRES syndrome), separating the damage from malpractice.
On the contrary, it did consider that the patient’s right to be informed had been violated. Law 41/2002 requires that consent for surgical interventions be given in writing after receiving adequate information. Although the medical record mentioned that the consents had been signed, there was no physical document proving this in the file, and neither the clinic nor Ibermutua could provide it.
In this context, the burden of proof falls on the Health Administration. The lack of the written document makes it impossible to verify what information was given about the risks, which constitutes a violation of the lex artis and moral damage, by depriving the patient of the opportunity to decide. In this case, the responsibility falls on Ibermutua, since it was the entity obliged to provide assistance and guarantee compliance with the procedures, regardless of its internal agreements with the clinic. Thus, he sentenced the court to pay the patient 15,000 euros in compensation for moral damage due to the lack of information.