In order to assess the existence of civil liability it is necessary that the person who alleges its existence proves the constituent elements of the same; however, among the exceptions to the burden of proving these elements, case law has pointed out the existence of disproportionate damage which reverses the burden of proof.
At Belzuz Abogados SLP, as lawyers specialising in Insurance Law, we have conducted multiple medical civil liability proceedings in which the existence of the so-called ‘disproportionate damage’ has been alleged, which is a jurisprudential doctrine that reverses the general rule contained in article 217 of the Civil Procedure Act that the burden of proof corresponds to the party claiming the existence of non-contractual civil liability.
In this way, on the basis that whoever suffers damage and seeks judicial protection has the burden of proving the elements that make up liability, which are, in short, the fault or negligence of the causal agent, the actual damage and the causal link between the action or omission of the agent and the damage caused.
However, there are occasions, especially in medical interventions in which damage is caused which is inexplicable in a coherent manner for the sufferer given the disproportion between the damage suffered and the nature of the treatment, such as, for example, treatment of a minor skin lesion, such as a wart, which results in a loss of the patient’s health, or treatment of a minor skin lesion, such as a wart, which results in a loss of the patient’s health, or treatment of a minor skin lesion, such as a wart, which results in a loss of health.
In this sense, the disproportionate damage is so inexplicable in the sphere of the professional’s actions that it reverses the burden of proof, obliging the practitioner to give an explanation and to prove the circumstances in which it occurred, based precisely on the principle of proximity and ease of proof, which is in accordance with the provisions of article 217.7 of the Civil Procedure Act, which states that for the application of the rules of the burden of proof the Court must bear in mind the availability and ease of proof of the parties.
Thus, the doctrine configures disproportionate damage, not as a reversal of the burden of proof in a given case, but as a requirement for the professional derived, precisely, from the inexplicability of the event based on the proximity and ease of proof, understanding its lack of explanation as an inference of negligence, as stated in the Judgment of the Supreme Court, Civil Chamber, no. 828/2021 of 30 November, rec. 5955/2018 (ECLI:ES:TS:2021:4355)
“[…] the doctrine of disproportionate or enormous damage, understood as that event not foreseen or explicable in the sphere of the medical professional’s actions, which obliges him to prove the circumstances in which it occurred due to the principle of ease and proximity of proof. A coherent explanation is required as to the reason for the significant dissonance between the initial risk involved in the medical
activity and the consequence produced, so that the absence or omission of explanation may determine the imputation, creating or giving rise to an inference of negligence. The existence of disproportionate damage affects causal attribution and the reproach of culpability, altering the general canons on medical civil liability in relation to the ‘onus probandi’ of the causal relationship and the presumption of fault (STS 23 October 2008, and those cited therein)”
In relation to the above, the theory of disproportionate damage applies when an inexplicable damage arises in such a way that it does not occur unless there has been negligent care, as pointed out in the Judgment of the Supreme Court, Civil Chamber, no. 635/2018 of 16 November, rec. 1250/2016 (ECLI:ES:TS:2018:3823).
These are cases in which the production of a disproportionate or inexplicable damage constitutes in certain circumstances, such as in the field of healthcare, evidence or proof of negligence on the part of those responsible for the service insofar as ‘or may have acted diligently and adopted the appropriate preventive and precautionary measures’. In other words, the theory of disproportionate damage makes it possible to establish a presumption of fault in the existence of damage of the kind that usually only occurs due to negligent care, and an explanation or justification is expected from the agent whose absence and omission can determine the imputation of fault, which is then presumed (among others, STS of 14 November and 23 May 2007 and 6 June 2014, the texts of which are attached).
Similarly, this has been qualified by other decisions which point out that the application of this doctrine tries to approach the judgement of the agent’s conduct on the basis of an explanation whose requirement is transferred to its scope, i.e., in the face of damage that is not usually produced except through negligent conduct, an explanation or justification is expected, whose absence could determine the imputation of liability, as recalled in the Judgement of the Supreme Court, Civil Chamber, no. 698/2016 of 24 November, rec. 455/2014 (ECLI:ES:TS:2016:5161)
Disproportionate damage appears in the appeal as the last attempt to find a criterion of imputation that would allow the claim to be upheld. The doctrine of disproportionate damage has neither been used in the judgment nor has any place in this case. The doctrine of disproportionate damage – STS 6 June 2014 – no longer makes it possible to deduce negligence, nor to directly establish a presumption of fault, but to approach the judgement of the agent’s conduct on the basis of an explanation whose requirement is transferred to its scope, since in the existence of damage of the kind that usually only occurs due to negligent conduct, an explanation or justification is expected from the agent, the absence or omission of which can determine the imputation of fault which is already then presume
However, as we have already pointed out, disproportionate damage is seen in the face of the inexplicability of damage of such a scale that, in normal circumstances, would have been the result of negligence on the part of the agent, so that, if there is a cause that can explain this damage, it could not be applied, as recalled in the Judgment of the Supreme Court, Civil Division, no. 240/2016 of 12 April, rec. 618/2014 (ECLI:ES:TS:2016:1624)
This being the case, there cannot be disproportionate damage, however much it may appear to be so in practice, when there is a cause that explains the result, as it is not possible to attribute to them any consequence, however harmful it may be, that falls outside their field of action (STS 19 October 2007; 30 June 2009; 28 June 2013). In the argument put forward by the appellants, all the evidence, duly assessed in the
judgement, not only demonstrates the diligence employed in the execution of the medical act, surgery and anaesthesia, but also rules out any appeal to the so-called disproportionate damage by placing the cause of the patient’s death in a complication related to his heart disease and which was treated from the moment it developed. The fact that the forensic autopsy was not carried out is something beyond the control of the doctors who attended him and, therefore, also beyond the scope of this doctrine, insofar as it would imply transferring the proof to the doctors about something that was not within their reach, such as the result of the autopsy
In the same sense, the Judgment of the Supreme Court, Civil Division, no. 288/2014 of 29 May, rec. 888/2012 (ECLI:ES:TS:2014:2039) expressed that in the presence of a cause that justifies the damage, the existence of disproportionate damage cannot be assessed:
It is true that the anaesthetic procedure itself generates a risk to the life and physical integrity of the patient, and as such is unrelated to the previous ailment at the origin of the surgical intervention, which prevents confusing the simplicity of a specific condition that is to be solved with the surgical intervention, which may be simple and not entail any risk to the patient’s health, with anaesthesia, whether general or regional, which in itself entails a clear risk despite the progress made in recent years and the consequent reduction of risks in its application ( SSTS 22 September 2010 ; 20 January 2011 ). But what the appellant omits is that the conviction is not so much for the existence of disproportionate damage, since there is a cause that justifies it, but for the breach of the obligations of the defendant’s liability, or in other words, we are not dealing with a risk inherent to anaesthesia, but with an incorrect placement of the endotracheal breathing tube and consequent violation of the lex artis of the anaesthesiologist, as rightly reasoned in the judgment, based on the medical expert and documentary evidence.
In conclusion, the doctrine of disproportionate damage is applicable in cases in which there is inexplicable and disproportionate damage in relation to the risk initially assumed by the person who suffers it of such a magnitude that it can only be explained by negligence. In this sense, the damage must have such an inexplicable origin that it places the burden of providing an explanation on the professional, it being understood that in the absence of an explanation the agent’s behaviour may be classified as negligent.
From the Insurance Law Department of Belzuz Abogados, we are at your disposal to analyse your problem in terms of civil liability and insurance in the most professional, efficient and solvent manner.
Mikel Reyna Escalera
Abogado Senior -Departamento de Seguros
España
BELZUZ ABOGADOS SLP, Insuralex´s Exclusive Member in Spain and Portugal
