The TSJ Galicia in judgment 276/2023, of March 29, has ratified the sentence to SERGAS to compensate, for loss of opportunity, the husband and two children of a woman who must be 56 years old due to an embolism caused by cancer of the lung that she suffered from and of which she was not diagnosed. It partly upholds the appeal filed by the defendants against the judgment that, partially accepting their appeal against the decision rejecting the claim for financial responsibility that they had formulated, estimated that compensation at 20.000 euros compared to the 80.000 they requested, and making a breakdown of that sum among the injured parties, ordering its payment to the Administration and jointly and severally to their insurer, with legal interest from the date of the claim.
Remember that, according to jurisprudence, the loss of compensable opportunity requires taking two elements into consideration: the degree of probability that the omitted medical action could have produced a beneficial result and its scope or entity.
It explains to the Court that, in this case, the opportunity delay is located in the lack of action regarding the information obtained from an RX column. It shows that, after multiple consultations for low back pain, the only response given to the patient was analgesic treatment, diagnosing a low back pain problem, but without inquiring more soberly into other possible causes of the pain that did not subside with the prescribed analgesia, when The X-ray showed an improvement in the mediastinal and doubtful projection nodes.
He stresses that this result should have led to completing the study with other more precise techniques, such as a CT scan, to rule out other pathologies, as it shows that they did exist once the autopsy report after death is known. He reports that the autopsy revealed the existence of a large cell infiltrating neuroendocrine tumor of the lungs, with metastasis in lymph nodes and extensive metastasis in the liver, and that, if it does not exist, it may not be found in the coroner, if he can relate it. . with the affectation in the spine that manifested itself with pain in the patient. He pointed out in this case that the peripheral test asserts that bone metastases can appear in up to 25% of patients in this type of cancer and that it manifests in the spine, pelvis and femur.
He affirms that the study should have been completed according to the lex artis and that, by not having done so, the opportunity to diagnose the tumor that led to death was lost. Note that it is not necessary to analyze the effectiveness that the treatment could have had, or to what extent the course of events could have changed, because it is precisely this uncertainty that must be compensated with the corresponding compensation for a loss of opportunity.
The TSJ considers that this assessment of the loss of opportunity also includes the non-material damage caused by not having been able to know the real diagnosis of the pathology before the death, and, specifically, by not stating whether it was brought to the attention of the patient The radiological result is valued because of the damage of having deprived her of an opinion on the matter or of making certain decisions such as requesting a second medical option.
Regarding the amount of the specific amount of compensation that their relatives are entitled to, the Chamber maintains that the sum of 20,000 established in the instance was appropriate to the prevailing circumstances. Take into account that the patient fellacies before 2 months had passed since his first assistance with low back pain, so it is evident that the tumor he suffered from was already widespread and little or nothing could be done to try to stop it or increase his expectations . For this reason, he estimates that the degree of probability of an improved result from having diagnosed before was very low, and that it is this aspect that must be considered, since even assessing the lack of information to the patient about the result of the X-ray so that she could, in his case, make a decision, he had little room for maneuver when faced with the stage of the tumor.
Lastly, as requested by the interested parties, the Court made a breakdown between them of that sum (10,000 euros for the husband and 5,000 for each child), and ordered its payment to the Administration and jointly and severally to his insurer, with the legal interest from the date of the claim.
