The Superior Court of Justice of Murcia obliged the Murcia Health Service to compensate a patient 20,000 euros for not having correctly informed that a surgical procedure could lead to a irreversible shortening of your penis.
The room of … The Contentious-Administrative Court partially upheld the appeal filed by this patient against the rejection of his request for financial liability and recognized his right to be compensated by 20,000 euros for the “bad information” received before undergoing surgery within the framework of the Health Service of Murcia, dependent on the Health Department of the Autonomous Community.
In its judgment, the Chamber analyzes the health care provided to the patient, diagnosed with Peyronie’s disease, who, after unsuccessful conservative treatment, underwent surgery with corporoplasty. The patient attributes various consequences to this intervention and claims compensation of more than 67,000 euros, believing that he was not sufficiently warned of the possible consequences of the operation.
The Court expressly excludes existence of professional misconduct medical in health care. The resolution emphasizes that the intervention was indicated from a clinical point of view, that it complied with the “lex artis” and that the after-effects described – such as the shortening of the penis or the persistence of functional difficulties – constitute risks inherent to the technique used and known in the medical literature. In this sense, the Chamber concludes that “neither the negligence attributable to the doctors nor the poor execution of the surgical intervention have been proven”.
“Generic and empty information”
However, the judgment finds a relevant violation in the area of informed consent. Although the patient signed a document before the intervention, the Chamber considers that the information provided was generic and lacked the details necessary to allow a truly free and conscious decision. In particular, he points out that there is no evidence that he was clearly warned of the high probability that the procedure would not resolve the initial problem or that penile shortening was a frequent and unavoidable consequence associated with the surgical technique, with a possible negative impact on his sex life.
The Court recalls that informed consent “is not a simple formal procedure”, but an essential guarantee of the patient’s right to self-determination, and that its total or partial omission constitutes an abnormal manifestation of the functioning of the health service. In this regard, the Chamber relies on the consolidated jurisprudence of the Supreme Court, which considers that “the lack or insufficiency of information generates a compensable moral damage, even if there is no malpractice in the medical service itself.
“It was not essential for the patient’s health, there was no guarantee that it would solve the problems he was suffering from, and there were also negative effects”
The judgment emphasizes that the intervention “was not essential for the health of the patient, there was no guarantee that it would resolve the problems suffered, and in addition there were very frequent negative effects or complications”, extremes that “it is obvious that they are not envisaged in the informed consent”. He therefore concludes that “it does not seem that a generic and empty information “as the one signed by the actor can cover these requirements.”
For this reason, the Court considers that compensation lower than that claimed is appropriate, since there is a document of informed consent, although incomplete, and the clinical situation of the patient, with the exception of the shortening of the penis, is similar to that before the intervention. For this reason, it sets the amount at 20,000 euros, or approximately 40% of the amount initially requested, also excluding the aggravation of previous unproven pathologies in the process.
The judgment declares the contested administrative decision contrary to the law and recognizes the applicant’s right to receive the fixed compensation, plus the legal interest on the administrative claim, without imposing costs. The resolution is subject to appeal before the third chamber of the Supreme Court, provided that the conditions of interest of cassation provided for by law are met.
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