Medical negligence in Barcelona: how a claim for medical harm is made
When medical harm is legally negligence, how much weight the medical records and the expert report carry, and how the out-of-court claim and the court route are organised depending on whether the provider is public or private.
Medical liability is one of the most delicate areas of the law of damages, and also one of the most misunderstood. The fact that treatment goes wrong does not mean there has been negligence: medicine is, with limited exceptions, an obligation of means and not of result. What is judged is not the outcome but whether what was done matched what could be required at that moment and with that information.
This guide explains when medical harm can legally be claimed for, what documents support a claim, who the claim is brought against depending on whether the provider is public or private, and what time limits apply.
The scope of this guide
It is general information only. Every medical claim depends on the particular medical records and on the expert's view: no two cases are alike, and no general text can predict the outcome of a particular one.
What medical negligence is in law
There is medical liability where what the professional or the provider did departs from the lex artis ad hoc (the standard of care that can be required given the state of medical knowledge, the means available and the circumstances of the particular case) and harm to the patient follows from that departure.
Every claim must prove three elements, and none of them is presumed:
- Breach of the standard of care. It is not enough that the outcome is bad: it has to be shown what should have been done and was not, or what was done incorrectly.
- The harm. Specific, actual and capable of assessment: a permanent effect, a worsening, a lost chance of recovery.
- The causal link between the two. This is where most claims are lost, because the patient usually starts from an existing condition that was already causing harm in itself.
There is also an intermediate concept that the courts apply frequently: loss of a chance. Where it cannot be said with certainty that correct treatment would have avoided the harm, but it can be said that it deprived the patient of a real possibility of a better outcome, it is that lost possibility that is compensated, not the whole of the harm.
The most frequent situations
Diagnostic error or delay
This is the largest group. Delay in diagnosing a serious condition can turn a treatable process into an irreversible one. In legal terms, the analysis is whether the symptoms and the tests available required the investigation to continue, whether the protocols were followed and whether the results already in the records were taken into account.
Defects in surgical treatment
Operating on the wrong site, material left in the surgical field, avoidable injury to neighbouring structures, or complications not noticed or not treated in time after the operation.
Medication errors
Incorrect prescription or administration, inappropriate doses, drugs contraindicated because of allergies or interactions recorded in the medical notes, and failures in monitoring treatments that require blood testing.
Follow-up and premature discharge
Discharges from hospital with no subsequent monitoring, test results that nobody reviews and referrals that never happen. These are organisational rather than individual failures, and that is why liability usually falls on the provider.
Medical harm after an accident
Where the initial injury comes from a road traffic accident and is made worse by the treatment that follows, it is best to coordinate the two claims. The route for the first is set out in the guide to road traffic accidents in Barcelona.
Informed consent
There is a separate route for claiming that many patients do not know about: the absence or inadequacy of informed consent. Ley 41/2002, the basic act governing patient autonomy, requires information to be given about the nature of the procedure, its typical and personalised risks, the alternatives available and the foreseeable consequences, and requires written consent for surgical operations and for invasive procedures carrying risk.
Where that information is not given, or is given by way of a generic form signed on the way into theatre, the patient has been deprived of the possibility of deciding. The courts compensate that separate harm even where the operation was carried out correctly, because what is infringed is not health but the right to decide about it.
The burden of proving that the information was given falls on the provider or the professional, not on the patient. That allocation of the burden of proof is one of the strongest points of this kind of claim.
How to claim, step by step
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Request the complete medical records
It is a patient's right and the first practical step in any claim. They must be requested in full: progress notes, nursing sheets, test reports with their images, the surgical protocol, the anaesthetic chart and the consent documents. Records provided incomplete are, in themselves, a significant fact.
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Medical expert report
This is the central piece. A specialist in the same field reviews the records and gives an opinion on whether there was a departure from the required standard and whether that departure caused the harm. Without a favourable report it is not advisable to claim: the strain and the cost are not justified. The firm works with a network of medical experts specialising in the different fields.
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Out-of-court claim
It is addressed to the public liability insurer of the provider or the professional, or to the health authority if the provider is public. Many matters are resolved at this stage, with a financial settlement and without court proceedings.
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Court proceedings
If there is no agreement, a claim or an appeal is filed, according to the appropriate route. The expert report is confirmed at the hearing and tested against the other side's report.
The public, private and criminal routes
- Public healthcare. The claim is dealt with as liability of the public authorities: a preliminary claim to the relevant health service and, if it is rejected, an appeal to the contentious-administrative courts. The general procedure is explained in the guide to administrative procedures in Barcelona.
- Private healthcare. The claim is brought in the civil courts, against the professional, the provider and its insurer, on a contractual or non-contractual basis depending on the relationship. Where a private health insurer is involved, it may also be liable for its choice of listed practitioners.
- The criminal route. Reserved for cases of gross negligence resulting in serious injury or death. It is exceptional: most situations do not reach the criminal threshold, and taking this route without a solid basis delays the civil claim without adding anything.
Choosing the right route from the outset matters: getting it wrong uses up time and, at worst, the time limit.
How the compensation is calculated
There is no specific scale for medical harm. The courts apply, as a guide, the system for valuing injuries caused in road traffic accidents, adapting it to the circumstances of the case. The heads that are valued are:
- The days up to stabilisation, with their degree of limitation and any hospital stays.
- Permanent functional and cosmetic effects, given points by the expert.
- Past and future medical expenses, prostheses, physiotherapy and adaptation of the person's surroundings.
- Loss of earnings through temporary or permanent incapacity for work.
- Non-pecuniary loss suffered by relatives in cases of severe disability or death.
- The separate harm from lack of informed consent, where that arises.
This guide does not publish figures because the real range depends entirely on the points given for the permanent effects, on the patient's age and on their employment situation. Any number given without seeing the expert report is an estimate with no basis.
Time limits
The time limit is one year, both for a claim against the health authority and for a non-contractual claim against a private provider. The key lies in the dies a quo(the starting day): it is not counted from the operation but from when the final extent of the harm is known, that is, from the stabilisation of the permanent effects or from the report that establishes them.
Where the relationship with the private provider is contractual, the period may be longer, but it is best not to rely on that: how the claim is classified is open to argument and the court may take a different view. The prudent rule is to act within the year and to leave conclusive evidence of every claim, which interrupts the limitation period.
It should also be borne in mind that the handling of these matters has been affected by the reform of the court system explained in the guide to Ley Orgánica 1/2025 and the Tribunales de Instancia.
Other related guides
Medical negligence
Claims for medical harm at public and private providers: medical records, expert medical evidence and negotiation with the insurer.
Go to the practice areaRoad traffic accidents in Barcelona
How bodily injury is valued under the scale and how the compensation is negotiated with the insurance company.
Read the guideLey Orgánica 1/2025 (Spanish Organic Act 1/2025) and the Tribunales de Instancia
The reform that has changed the organisation of the courts before which these claims are brought.
Read the guideGuide written by the firm Ajuridic. Principal: Noemí Ampurdanés Parés, lawyer registered with the ICAB under no. 22359, with more than 30 years in practice.
It is general information only. It does not constitute legal advice and does not replace analysis of a specific case: the outcome depends on the medical records, on the expert's view and on the time limits in each matter.
The time limit and the medical records
Two free tools to work out how long there is to claim and to gather the medical records and reports.
Time limit checker
Eleven time limits covering fines, employment, damage claims and inheritance. Enter the start date and it shows the deadline for acting and how many days are left.
Check a time limitDocument checklist
The papers for a medical negligence claim, tickable and printable, so you can bring them already checked to the first consultation.
Open the checklistThe first thing to do is request the medical records
With the complete records it is possible to assess whether the case has prospects on the expert evidence before starting anything. The firm is at Carrer del Freser, 104, in El Clot, and also deals with enquiries by telephone and WhatsApp.