In this article we will analyse the judgement handed down by the Provincial Court of the Balearic Islands We will analyse the judgement of 14 April 2020 of the Provincial Court of the Balearic Islands, Speaker Mr. Artola Fernández, which sentences the insurer to pay compensation for the defective treatment provided by the dental clinic and excludes the second franchisee clinic that continued with the treatment, due to lack of evidence.
The 21st Court of First Instance of Palma, on 24 May 2019, in an ordinary lawsuit in the exercise of an action for a claim for an amount derived from professional civil liability, sentenced one of the two franchisee defendants and exonerated the insurer from liability.
The judgement was appealed before the Provincial Court of the Balearic Islands, which finally handed down the judgement analysed in this article.
The aforementioned judgement is of interest due to the peculiarity that liability has only been demanded from the franchisee directly involved in the damage and his insurer, exonerating the second defendant franchisee who, despite having intervened in a second phase of the treatment, has not been held liable for the final harmful result.
The factual situation. In the claim, the plaintiff, Ms. XXXX, brought an action against the entities “AAAA SL, “BBBB SL” and the insurer “ZZZZ , in an ordinary lawsuit claiming an amount derived from professional civil liability, specifically as a result of a contract for the execution of work relating to the placement of dental implants in the lower jaw, by means of an overdenture, and the placement of three implants in the upper jaw held in place by an ackerman bar. The plaintiff claims that, as a result of the defective health care provided to his client during the implantation of dental prostheses and the subsequent follow-up after the operation, he has suffered a series of damages for which, on the basis of Articles 1089 and 101 of the Civil Code, he claims that the Court should order the defendant to pay the costs. 101 of the Civil Code, he requested a declaration of the joint and several professional civil liability of “AAA SL” and “BBB SL”, as well as that of the insurer in its capacity as insurer of the former’s civil liability; he therefore requested, in the original pleading of the application, that a judgment be handed down declaring the health liability of the defendants to pay compensation for the following concepts:
a) 11,817 Euros for the cost of the intervention carried out to implant the prosthesis;
b) 9,150 Euros for the cost of the restorative intervention;
c) 4.000 Euros for non-pecuniary damage.
d) order the defendants to pay the costs
In this scenario, AAA was in default, BBB and its insurer Mapfre objected and argued that BBB lacked standing to sue as it had had no involvement in either the diagnosis or the treatment given to the now deceased.
The lower court ruling ended by stating: “In short, that BBB S.L. undertook to revise and replace at its own cost the dental prostheses for the life of the patient in the case of fixed prostheses and five years for removable prostheses, but not to respond for poor design, anchorage, selection of the position of the bars and implants”.
The lower court ruling considered that “this case is framed in the context of voluntary medicine, not curative medicine, so that the plaintiff did not need to prove the fault or lack of diligence of the health professionals, it being sufficient to prove that the contracted and, therefore, expected result had not occurred, which would lead to the possibility of presuming, in the absence of proof to the contrary, professional liability”. It then analysed the evidence and concluded that AAA, S.L. was liable, although it reduced the scope of its civil liability in terms of the value of the amounts claimed for damages and moral damages.
With respect to the action directed against “BBB S.L.”, the judgement reiterated the conclusion, advanced by the Chamber, that the latter could not be liable for what was carried out by the co-franchisee “AAA S.L.”, concluding that it could only have a duty not to invoice the repair and replacement of the prostheses, in accordance with the corresponding guarantee, and on the other hand, it absolved Mapfre.
This judgement was appealed, with the result that the judgement dated 14 April 2020 of the Provincial Court of the Balearic Islands, after various considerations, partially upheld the plaintiff’s appeal, the purpose of which was to raise the amount of the first instance judgement for moral damages to a total of 4000 euros and to involve the insurer of AAA SL for the cost of repairing the poorly executed part of the treatment.
In this judgement the clinic BBB SL, which continued with the treatment, was acquitted and its insurer was also condemned, with a very interesting reasoning.
The clinic that continued with the treatment is not liable for the damages caused to the patient, as they are solely attributable to the negligent action of a third party, in this case the AAA SL clinic, and liability cannot be extended to the mere fact of being franchisees of the same brand.
The continuation of treatment does not in itself justify a franchisee being liable for the damage caused by another.
On the other hand, the lapse of time between one operation and another and the absence of evidence does not justify that the second clinic involved should be liable for the damage caused to the patient by the operation.
CONCLUSION: In matters of civil liability, the fact that a franchisee carries out work, and that it is completed by another, unless there are facts that justify it, does not imply a co-participation in liability.
On the other hand, each franchisee is a legal person distinct from the other and the participation in the final liability must be based on facts that justify it, and there is, therefore, no joint and several liability merely because they act as entities belonging to the same franchise. Liability is individualised.
