The Supreme Court has sentenced two urologists and the insurer to compensate 25,000 euros to a patient who underwent a cryotherapy intervention without having given written informed consent. In this way, the Civil Chamber revokes the previous ruling of the Provincial Court of Gipuzkoa and upholds the appeal (albeit partially) presented by the affected person, who alleged that he was never warned of the specific risks of the technique that was finally applied to him.
As explained in the ruling STS 302/2026, the events date back to September 2015, when the patient was diagnosed with low-risk prostate cancer after a biopsy. Although the man signed the informed consent document for a radical prostatectomy (complete removal), the doctors finally recommended and applied a different technique, this being cryotherapy, described as “much less invasive” and “cutting edge.” The problem and main conflict, according to the ruling, is that “the signed consent for the practice of cryotherapy is not in the record,” only a blank form appearing in the trial.
Thus, after performing the intervention on October 28, 2015, the patient suffered various complications and permanent sequelae that he did not expect, including “pudendal nerve neuralgia,” “impotence,” “urinary incontinence,” and “reactive depressive disorder.” The Supreme Court recognizes that, although the surgery was performed correctly from a technical point of view and there was no malpractice in the execution, the patient was deprived of knowing the real risks to decide freely.
An “illegitimate interference” in its entirety
The ruling is categorical regarding the validity of the information provided to the patient. The judges of the High Court emphasize that the fact of having paid for the operation does not validate the lack of information, stating that “considering that an invoice covers the requirements of informed consent does not withstand the slightest rational criticism.”
Furthermore, they reject the defense’s argument that the risks were similar to the other operation, pointing out that it is “unacceptable that the requirements of the report on the typical risks of a surgical technique are considered covered due to the fact that the risks of a different one had been warned.”
In this case, the Supreme Court applies the doctrine of “loss of opportunity,” recognizing that the patient “was deprived of necessary information to make an informed decision or opt for another therapeutic alternative.” Therefore, the ruling concludes that the affected person suffered “an illegitimate interference in his physical integrity configured as a fundamental right of the person.”
Finally, the ruling condemns the insurer to pay punitive late payment interest, understanding that the company knew that the informed consent “did not appear in the patient’s clinical history,” so its opposition to paying was not justified.