I. Introduction
At Belzuz Abogados, as specialists in Insurance Law, we receive queries and are familiar with the management of procedures in all aspects of this broad legal branch, and we also make regular research and training efforts to keep abreast of the latest developments in legislation and jurisprudence that may affect our field. In this regard, one of the best known and most important areas, due to the high level of litigation that accompanies it, is health insurance.
The case we are dealing with today has its origin in a medical negligence case in which the injured party filed a lawsuit and obtained the recognition of a considerable amount of compensation (more than 130,000 euros) by the courts. The conviction for this amount was joint and several, with a well-known medical insurer, two doctors and their respective insurers being convicted. The first insurer, which was the insurer of the clinic where the professionals provided their services and where the injured party was treated, paid the full amount of the compensation and, after doing so, brought a recourse action against the other defendants, exercising what is characteristically known in Spanish Insurance Law as “action of repetition”.
II. What is a recourse claim?
An action of repetition is a procedural situation in which one of the liable parties, who has had to pay compensation or bear any other type of liability, brings an action to claim from the other liable parties the share that corresponds to them, in accordance with the extent to which they have participated in the damage caused.
In this case, this action of repetition has its origin in different precepts, both in the Civil Code and in the Insurance Contract Law itself. Particularly, the so-called joint and several liability has its origin in article 1137 of the Civil Code. What is meant by a joint and several obligation, such as the one established in the conviction that gives rise to the claim we are examining, is that compliance with the obligation (in this case, to compensate the injured party) is enforceable against any of the convicted parties up to
the maximum limit of the compensation, without it being necessary to take action against each one claiming their share. In practice, this usually means that it is the larger and more solvent insurance company that ends up paying the compensation.
On the other hand, Article 1145 of the Civil Code authorises the joint and several debtor who paid to claim from the others the part that corresponds to them, with the interest on the advance payment. This is the basis of the medical insurer’s action for recovery against the other defendants, but it is also directed against the doctors and their insurers on the basis of the non-contractual liability of articles 1902, 1903 and 1904 of the Civil Code.
In brief summary, what these articles regulating non-contractual liability cover is, among other things, the liability of the owners or directors of an establishment or company for damages caused by their employees. These are the well-known “culpa in eligendo” and “culpa in vigilando”, which in turn allow the employer to recover against his employees what he would have paid for the damage caused by them.
III. Analysis of the case
Having commented in simplified form on the legal grounds of the case, the claim of the medical insurer against the two health professionals and their respective insurers was partially upheld at first instance, with the doctors being convicted but not their insurers. Faced with this decision, the plaintiff insurer lodged an appeal, which was rejected by the Provincial Court, which upheld the first instance judgement. Faced with this situation, the medical insurer decided to lodge a cassation appeal before the Supreme Court, which was upheld in STS (Civil Chamber) no. 3166/2018, of 20 September. The grounds of appeal were as follows:
A. Infringement of Articles 1138 and 1145 of the Civil Code, in conjunction with Articles 1902, 1903 and 1904 of the same law and the case-law on the action of return against the jointly and severally liable party.
B. Infringement of Articles 1903 and 1904 of the Civil Code, in relation to the analysis of the Provincial Courts in cases of actions for reimbursement by insurers or commercial companies against doctors in their medical lists.
C. Infringement of the aforementioned precepts and of Article 73 of the Insurance Contract Law, in relation to the acquittal of one of the defendant insurers, due to lack of passive procedural standing.
We will now analyse each one of them, following the reasoning of the Supreme Court:
The main medical insurer is liable for the existence of the aforementioned culpa in vigilando and culpa in eligendo as the provider of services (clinics and professionals working in them) which are offered to some beneficiaries and with which the insurer profits. There was, as is not disputed in these proceedings, since it was already declared in a previous proceeding whose result is final, a deficient provision of the service (health care). The fact that the doctors responsible belong to the medical staff of the insurer is sufficient to affirm the liability of the latter as guarantor of the service. Notwithstanding the above, and in relation to the case at hand, the Supreme Court points out that:
1. The liability of the doctors to the injured patient is joint and several with the health insurer. However, in the specific case, it has been proven that the damage was caused by the poor provision of the service by two professionals in particular, which makes it possible to demand the liability of these professionals and, by extension, of their own professional liability insurers.
2. The Supreme Court maintains the constant criterion in its case law (STS 129/2015 and 249/2016) that, once the compensation has been paid by one of the jointly and severally liable parties, the party who has paid may bring an recourse claim to debate the distribution of that liability among all those involved. In very technical terms, there is joint and several liability towards the injured party but, once the compensation has been paid, non-joint and several liability will apply between the defendants.
3. The existence of culpa in vigilando and culpa in eligendo of the medical insurer, for the damage caused by the doctors in its medical staff, authorises it to exercise a recourse claim against them. On the other hand, it could also be justified that there is contractual liability of these doctors towards the health insurer, as there is a contract between them and it can be affirmed that there was a breach or defective fulfilment of the obligation on the part of the doctors, in application of art. 1101 of the Civil Code.
IV. Conclusion
The Supreme Court upheld a medical insurer’s recourse claim against two of its own doctors and their insurers. It is based on a previous procedure in which all of them were ordered, as jointly and severally liable, to pay compensation to a patient injured by a poor service provision with a damaging result. The medical insurer paid the compensation and subsequently brought an action for recovery against the doctors and their civil liability insurers for their share in the damage.
The Supreme Court agreed with the health insurer as it understood that, in the first procedure, it was condemned jointly and severally with the other parties involved as the existence of the so-called “culpa in eligendo” and “culpa in vigilando” was established, that is to say, the liability of the insurer for the damage caused by the doctors on its medical staff was determined, given that they form part of the provision of its services and it profits from this.
That said, there is nothing to prevent the insurer from later taking recourse against the members of its own medical staff and their insurers for the share of liability that corresponds to them, which is based both on the right of recourse against its employees provided for in article 1904 of the Civil Code, relating to non-contractual liability, and on a defective fulfilment of its obligation by the doctors based on contractual liability in article 1101 of the same law.
From the Insurance Law Department of Belzuz Abogados, we are at your disposal to analyse and defend your problem in matters of civil liability and insurance in the most professional and efficient manner.
Adrían Macías Belzuz Abogados Insuralex´s Exlusive Member in Spain.
