Comprehensive Guide to Medical Malpractice in Colombia by Colombia Law Connection

Introduction to medical malpractice in Colombia

With the fast growing medical tourism industry in Colombia, many foreigners are heading here to have different types of medical procedures done. The main reason for this is the cost of procedures in Colombia is significantly cheaper than countries like the United States. However with this lower cost comes a risk of a procedure going wrong. As a law firm in Colombia, we have had an uptick in contact since 2023 from foreigners regarding medical malpractice cases.

This comprehensive guide provides detailed information about the legal framework, common types of malpractice, and the steps to take if you suspect you've been a victim. Knowing your rights and the legal avenues available can help you navigate this complex area and seek justice effectively.

What is Medical Malpractice?

Medical malpractice occurs when a healthcare provider's negligent actions result in patient harm. This negligence can manifest in various ways, including errors in diagnosis, treatment, aftercare, or health management.

To establish a claim for medical malpractice, it must be demonstrated that the healthcare provider deviated from the accepted standard of care, which directly caused the injury or harm to the patient. This concept is crucial as it forms the foundation of any malpractice claim.

Key Elements of Medical Malpractice

To successfully prove medical malpractice, the following key elements must be established:

• Duty of Care: The healthcare provider owed a duty of care to the patient.
• Breach of Duty: The provider breached this duty by failing to adhere to the standard of care.
• Causation: The breach directly caused the patient's injury or harm.
• Damages: The patient suffered damages as a result of the injury or harm.

Legal Framework Governing Medical Malpractice in Colombia

The legal landscape for medical malpractice in Colombia is established through several key laws and regulations designed to protect patients' rights and ensure accountability among healthcare providers. The following are critical components of the legal framework:

• Constitution of Colombia: The constitution establishes the right to health as a fundamental right, providing the foundation for all healthcare-related legal actions.
• Law 23 of 1981 (Medical Ethics Law): This law outlines the duties and responsibilities of medical professionals, providing a framework for ethical medical practice and sanctions for breaches.
• Law 100 of 1993: This law introduced the General System of Social Security in Health (SGSSS), regulating healthcare services and ensuring comprehensive care provision.
• Law 1122 of 2007: An enhancement to Law 100, this law implemented reforms aimed at improving healthcare quality and strengthening regulatory oversight.
• Law 1384 of 2010 (Patient's Rights Law): This law details the rights of patients, including informed consent and the right to receive quality care, and mandates healthcare providers to adhere to these rights.
• Criminal Code of Colombia (Law 599 of 2000): This law addresses criminal liability for healthcare providers in cases of gross negligence or recklessness that result in harm or death.
• Civil Code of Colombia: This code allows patients to pursue tort claims for compensation due to damages resulting from medical negligence, providing a pathway for financial redress.

Common Types of Medical Malpractice

Medical malpractice can manifest in various forms, each potentially leading to significant patient harm. Understanding these common types can help in identifying and addressing such incidents:

Misdiagnosis or Delayed Diagnosis

Occurs when a healthcare provider fails to correctly diagnose a condition, leading to inappropriate or delayed treatment, which can result in the condition worsening or becoming untreatable.

Surgical Errors

Includes mistakes made during surgical procedures, such as performing surgery on the wrong site, leaving surgical instruments inside the patient, or causing unintended damage to other organs.

Medication Errors

Encompasses a range of mistakes involving prescription drugs, including prescribing the wrong medication, incorrect dosage, or failing to recognize harmful drug interactions.

Childbirth Injuries

Involves errors during labor and delivery that harm the mother or child, such as improper use of delivery tools, failure to perform a necessary C-section, or inadequate monitoring of the mother and fetus.

Anesthesia Errors

Results from incorrect administration of anesthesia, which can lead to serious complications, including brain damage or death, due to overdosage or failure to monitor the patient properly.

Steps to Take if You Suspect Medical Malpractice

If you believe you or a loved one has been a victim of medical malpractice, it is crucial to act swiftly and methodically to protect your rights and build a strong case. Here are the steps to follow:

Document Everything

Keep meticulous records of all medical treatments, including dates, healthcare providers involved, and specific treatments administered. This documentation will be crucial for your case.

Seek a Second Opinion

Consult another medical professional to assess whether malpractice may have occurred. An independent evaluation can provide an objective perspective and support your claims.

File a Complaint

Submit a formal complaint to the healthcare institution involved and the Superintendence of Health (Superintendencia Nacional de Salud). This step initiates an official investigation into your claims.

Consult a Lawyer

Engage a lawyer specializing in medical malpractice to discuss your case. An experienced attorney can help you navigate the legal process, gather necessary evidence, and represent your interests effectively.

Filing a Medical Malpractice Lawsuit

Pursuing a medical malpractice lawsuit involves several stages, each requiring careful attention to detail and legal expertise. Understanding these steps can help you prepare for the process ahead:

• Initial Consultation: Meet with a lawyer to evaluate the merits of your case. The lawyer will review your medical records and assess whether there is sufficient evidence to support a malpractice claim.
• Investigation: The lawyer will conduct a thorough investigation, gathering evidence such as medical records, witness statements, and expert testimonies to build a strong case.
• Filing the Lawsuit: If the investigation supports a malpractice claim, the lawyer will file the lawsuit in the appropriate court, outlining the details of the malpractice and the damages sought.
• Pretrial Proceedings: This phase includes discovery, depositions, and negotiations. Both parties will exchange information, and depositions will be taken to gather sworn testimony. Many cases are settled out of court during this stage.
• Trial: If a settlement is not reached, the case will proceed to trial. Both sides will present their arguments, evidence, and expert testimonies to a judge or jury, who will then determine the outcome.
• Verdict and Appeal: The court will issue a verdict based on the evidence presented. If necessary, the decision can be appealed to a higher court, where the case will be reviewed for legal errors or other issues

Compensation in Medical Malpractice Cases

Victims of medical malpractice in Colombia may be entitled to various forms of compensation to cover the costs and losses associated with the malpractice. This compensation may include:

• Medical Expenses: Compensation for additional medical treatment resulting from the malpractice. This includes costs for surgeries, hospital stays, medications, and rehabilitation.
• Lost Wages: Reimbursement for income lost due to the inability to work. This covers both past and future earnings that the victim is unable to earn because of the malpractice.
• Pain and Suffering: Non-economic damages for physical pain and emotional distress. These damages are meant to compensate for the suffering endured due to the malpractice.
• Punitive Damages: In cases of gross negligence or intentional misconduct, additional damages may be awarded to punish the responsible party and deter similar behavior in the future.

The Role of Medical Experts in Malpractice Cases

Medical experts play a crucial role in medical malpractice cases. Their testimony helps establish whether the standard of care was breached and whether this breach caused the patient's injuries. Medical experts review medical records, provide opinions on the care received, and testify in court. Their insights are invaluable in helping the court understand complex medical issues and determine the legitimacy of the malpractice claim.

Challenges in Proving Medical Malpractice

Proving medical malpractice can be challenging due to the need to demonstrate that a healthcare provider's actions deviated from the standard of care and directly caused harm. Some of the common challenges include:

Complex Medical Evidence

Medical malpractice cases often involve complex medical evidence that requires expert interpretation.

Establishing Causation

It can be difficult to prove that the healthcare provider's negligence directly caused the injury or harm.

Statute of Limitations

Patients must file a lawsuit within a specific timeframe, known as the statute of limitations, which can vary depending on the case's specifics.

Statute of Limitations for Medical Malpractice in Colombia

In Colombia, the statute of limitations for medical malpractice claims typically requires that lawsuits be filed within a certain period after the patient becomes aware of the harm. This period can vary, and it is crucial to consult with a lawyer as soon as possible to ensure that your claim is filed within the appropriate timeframe.

How Colombia Law Connection Can Help

We have a team who specialize in assisting victims of medical malpractice. Our experienced team of legal professionals provides comprehensive support throughout the entire process, from initial consultation to final resolution. We understand the complexities of medical malpractice cases and are dedicated to ensuring that our clients receive the compensation they deserve. Our services include:

Thorough Case Evaluation

We assess the merits of your case and provide honest, professional advice.

Evidence Gathering

Our team meticulously gathers all necessary evidence, including medical records and expert testimonies.

Legal Representation

We represent your interests in negotiations, court proceedings, and appeals.

Personalized Support

We offer personalized support and guidance, keeping you informed at every step of the process.