Wednesday, 05 February 2020

Medical responsibility in the context of prenatal diagnosis (wrongful birth actions)

VolverDuring the month of February the Belzuz Abogados S.L.P. - Portugal Branch Litigation and Arbitration Law Department will focus on the analysis of medical liability resulting from errors in prenatal diagnosis.

In countries where voluntary termination is legal, so-called "wrongful birth" actions (actions for damages following unwanted or undue birth) have become increasingly common. Such actions are brought by parents (on their behalf) of children born with malformations that went undetected or were not communicated by doctors during prenatal examinations, with the aim of securing property and non-property damages.

There has been a clear evolution in the analysis and treatment of these matters.

Firstly, it is important to qualify the legal relationship established between the parents and the doctor who performs the prenatal examinations, with the primary purpose of detecting and identifying possible malformations of the foetus, and in the case of a malformation, allowing for the voluntary termination of the pregnancy under the circumstances expressly provided for by Law.

However, there is still considerable doubt about whether a Service Contract is established between the parties in accordance with the terms of Article 1154 of the Civil Code.

In general terms, the obligation assumed by the doctor tends to qualify as an obligation of means and not an obligation of result, which means that the doctor fulfils his obligation when he provides his services in accordance with the rules and methods of the profession, in strict respect for best practices "legis artis", thus removing the presumption of guilt reflected in article 799(1) of the Civil Code. This means that the injured party (creditor/patient) must demonstrate that the negligent party did not act in accordance with so-called "legis artis," and that the injury resulted from negligent behaviour by the doctor, which, as a rule, is essentially probatio diabolica.

Nevertheless, with regard to prenatal examinations, which are laboratory tests carried out with an inherent diagnosis, it has been considered that the doctor's obligation is one of results and not means, or rather, the doctor is bound to obtain a specific result – to detect the existence of possible foetus malformations.

An obligation of result means that if a malformation goes undetected or is not communicated to the child's parents, the onus is on the doctor to prove that such a result was caused by an objective impossibility attributable to unforeseeable circumstances or force majeure.

In fact, the basis for qualifying such an obligation as one of result lies fundamentally in the intense development and high degree of specialisation of laboratory tests, where uncertainty is minimal or even non-existent, thereby justifying that, beyond a mere obligation of means, the doctor who analyses such exams has an obligation of result, since the margin of error in such examinations is practically nil.

In view of the above, it is important to conclude that in the event of an error in prenatal diagnosis, the contractual civil liability regime applies, as per the presumption of guilt referred to in article 799(1) of the Civil Code, and that, if the respective assumptions are verified, property and non-property damages are due.

The lawyers at the Belzuz Abogados, S.L. - Portugal Branch Litigation and Arbitration Law Department have extensive experience with civil liability matters, namely with regard to issues involving civil medical liability as a result of errors in prenatal diagnosis.

 Susana Mendes Silva Susana Mendes Silva 

Litigation and Arbitration Law department | Portugal


Belzuz Abogados SLP

This publication contains general information not constitute a professional opinion or legal advice. © Belzuz SLP, all rights are reserved. Exploitation, reproduction, distribution, public communication and transformation all or part of this work, without written permission is prohibited Belzuz, SLP.


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