EPS, IPS, and Their Staff Are Jointly Liable for Medical Acts

The medical act is understood as any activity through which the physician commits to employing their skills to cure the patient; for this purpose, it inherently includes the duty to perform tasks aimed at diagnosis, prognosis, treatment, or surgical intervention required for the patient's recovery[1]. On the other hand, this activity concretizes the physician-patient relationship, which carries an associated risk, given the high possibility of causing sequelae, injuries, or limitations to legally protected interests.

Based on Article 2341 of the Civil Code, which provides: "He who has committed a crime or fault that has caused damage to another is obliged to indemnify, without prejudice to the principal penalty imposed by law for the fault or crime." Therefore, medical liability derives from the obligation, in principle contractual, of the physician, EPS, or IPS to care for the patient's bodily integrity and to properly conclude the service relationship of medical services[2].

Taking this assertion into account, both EPS, IPS, and medical personnel have the obligation to provide the patient with all curative tools available to them to achieve the patient's recovery. Therefore, unless otherwise agreed, both the institutions providing health services and the physician responsible for the medical act are jointly liable for the damages caused by said act.

In repeated jurisprudence of the Supreme Court of Justice, it has been established that lawsuits for medical liability against legal entities such as EPS and IPS, seeking compensation for damages caused by the medical acts of their subordinates, must respond effectively in accordance with Articles 1738 and 2347 of the Civil Code. Without prejudice to the fact that medical personnel, as natural persons, are obliged to compensate for lack of diligence, acting without expertise or care, or malpractice.[3]

It is worth clarifying that jurisprudence has specified that the direct liability of health service provider entities, arising from the medical act, will be engaged if, and only if, the act is performed by dependents, subordinates, or physicians affiliated with the institution. Thus, hospitals and medical institutions will be subject to the obligation to compensate damages, provided it is demonstrated that the medical personnel affiliated with their institution incurred in the surgical intervention, diagnosis, or treatment of the patient that gave rise to the damage.[4]

Without prejudice to the foregoing, it is important to highlight that the act of providing medical services, in any of its facets, generates direct obligations on the part of the direct provider of the service, that is, the treating physician, for all damages caused in particular by "professional fault or willful misconduct," the burden of proof of which falls on the plaintiff.

This joint liability between the legal entities IPS or EPS and medical personnel, without prejudice to the possibility of the lawsuit identifying the direct cause of the damage, and without prejudice to "professional fault or willful misconduct," brings with it the possibility of identifying the cause of the damage among those jointly liable for the medical act. If the legal entity is sued in a civil liability proceeding, it does not exonerate the liability of the medical personnel who caused the damage, once the causal link is demonstrated between the wrongful act subjectively caused by the physician, as the generator of the harm, and they are the one called to indemnify the institution[5].