Direct Action against the Insure and Valuation of Damage in Civil Liability for Medical Malpractice

Abstract

This article analyses the jurisprudential doctrine regarding the delimitation of the responsibility, the direct action against insurer, and the evaluation of damage caused in medical malpractice. An analysis is made of the the recent Supreme Court decision of September 21th, 2021, which presents relevant questions. First, in the facts under trial, a direct action had been taken against the hospital insurer after an administrative claim was dismissed as a result of the professional malpractice. Therefore, the analysis of the possibilities of such action against the insurers is necessary. On the other hand, having considered the appeal for the improper application of the scale contained in Law 35/2015, of September 22, for the valuation of the damage, it is necessary to analyze the criteria in the quantification of the derived damage of medical malpractice, since if the compensation scale for traffic accidents is applied as a guide, it must be with all its consequences.