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Defence of healthcare professionals under investigation for negligence, and private prosecution on behalf of patients and their families. Analysis of the lex artis, clinical records and expert evidence from the very first day of the proceedings.
In brief. Medical negligence in Spain: lex artis, expert evidence and the choice between criminal, civil and administrative routes. English-speaking lawyer.
An adverse outcome in healthcare does not automatically make the professional the author of a criminal offence. The Spanish Criminal Code punishes negligent conduct only where the law expressly so provides, and it requires the breach of the objective duty of care to reach the level of gross or less serious negligence, that a result of death or injury occurs, and that this result be objectively attributable to the clinician’s conduct. The applicable standard is not an abstract ideal of medicine but the lex artis ad hoc: the standard of care required of a professional in that specialty, in that facility, with those available resources and in relation to that particular patient. Outside that perimeter fall the non-culpable diagnostic error, the foreseeable complication inherent in the therapeutic risk assumed, and malpractice giving rise only to civil or administrative liability. We take on both procedural roles: the defence of the doctor, the nursing staff or the facility under investigation, and the private prosecution on behalf of the patient or their family where the harm does exceed the criminal threshold.
Medical negligence has no heading of its own in the Spanish Criminal Code: it is built on the general offences of homicide and injury by negligence, to which are added specific offences linked to professional practice, clinical records and the duty to provide care. Article 12 of the Spanish Criminal Code imposes a numerus clausus system, so that only expressly defined forms of negligence are punishable. Alongside the offences below there are less frequent but practically relevant scenarios, such as breach of healthcare professional secrecy under article 199 of the Spanish Criminal Code, or offences against moral integrity where the treatment of the patient goes beyond the scope of care.
This is the central offence in healthcare criminal law. It requires the death of the patient, a particularly serious breach of the duty of care, and a relationship of objective attribution between the two: it must be shown that acting in accordance with the lex artis would have avoided the outcome with a probability bordering on certainty.
A qualified form that arises where the negligence stems from lack of skill or inexcusable disregard of the technical rules of the profession itself. Practising medicine is not enough: an additional degree of blameworthiness is required, linked to the breach of knowledge that is elementary for the qualification held.
An intermediate category introduced for less serious breaches of the duty of care which, without amounting to gross negligence, go beyond the purely civil sphere. Its prosecution requires a prior complaint by the injured party or their legal representative, which makes the decision to complain a strategic one.
This applies where the outcome is not death but an injury requiring medical or surgical treatment, the loss or impairment of an organ, sterility, impotence or disfigurement. The penalty is graded according to the risk created and the outcome produced, and special disqualification is added where the negligence is professional.
It reserves criminal censure for the most serious harmful outcomes caused by a second-tier breach of the duty of care. As with homicide by less serious negligence, prosecution is conditional on a complaint by the injured party, and the classification as gross or less serious usually determines the course of the proceedings.
Healthcare staff occupy a position of guarantor towards the patient in their care. Accordingly, failing to act —not ordering an indicated test, not monitoring postoperative progress, not referring to the relevant specialty— may be equated with actively causing the outcome where there was a legal duty to act and a real capacity to prevent it.
This punishes a professional who, being under a duty to do so, denies healthcare or abandons the health service, where that conduct gives rise to a serious risk to people’s health. It is an endangerment offence that requires no harmful outcome and applies to emergency departments, on-call duties and continuous care services.
Altering, subsequently creating or manipulating the clinical record decisively aggravates any proceedings. Depending on the nature of the document and the status of the author, the offences of forgery of public, official, commercial or private documents apply, and article 397 specifically punishes the practitioner who issues a false certificate.
This punishes carrying out acts proper to a healthcare profession without holding the corresponding academic qualification or official recognition. It is aggravated where the person publicly claims professional status, and it is particularly relevant in aesthetics, alternative therapies and improper delegation of duties within a team.
The applicable penalty depends on three variables that must be argued from the investigation stage onwards: the seriousness of the breach of the duty of care, the extent of the outcome produced, and whether or not the negligence is professional in character. To this is added the civil liability arising from the offence, which in healthcare rarely falls on the professional alone.
| Offence | Provision | Sentencing range | Key aggravating factor |
|---|---|---|---|
| Homicide by gross negligenceDeath of the patient through a serious breach of the duty of care | Art. 142.1 CP | Imprisonment of one to four years | Extent of the departure from the lex artis |
| Professional negligenceLack of skill or inexcusable disregard of the rules of the profession | Art. 142.1, 2nd paragraph, CP | Special disqualification of three to six years | Elementary nature of the knowledge breached |
| Homicide by less serious negligenceLess intense breach of the duty of care | Art. 142.2 CP | Fine, subject to a prior complaint by the injured party | Significance of the standard of care breached |
| Injury by gross negligencePermanent sequela, loss of an organ, sterility or disfigurement | Art. 152 CP | Imprisonment or fine graded by the outcome | Risk created and outcome actually produced |
| Injury by less serious negligenceOutcomes under arts. 149 and 150 CP | Art. 152 bis CP | Fine, subject to a prior complaint by the injured party | Foreseeability and avoidability of the harm |
| Denial of careRefusal or abandonment of the service by a person under a duty | Art. 196 CP | Upper half of the penalty under art. 195 CP and disqualification | Seriousness of the risk created to health |
| Forgery of clinical documentsManipulation of records or a false certificate | Arts. 390 to 397 CP | Imprisonment, fine or disqualification depending on the offence | Nature of the document and status of the author |
| Civil liabilityCompensation for the harm arising from the offence | Arts. 116, 117, 120 and 121 CP | Direct for the insurer and subsidiary for the facility | Policy cover and connection with the service |
Indicative sentencing ranges under the Spanish Criminal Code in force. They do not constitute legal advice; the classification and the penalty require an individual analysis of the case.
No medical negligence case is won on narrative: it is won with complete clinical records and sound expert evidence. Our work begins by securing the integrity of the clinical record, of the informed consent required by Law 41/2002, the basic statute governing patient autonomy, of the department’s protocols, the progress notes, the vital-signs record and the traceability of medication. On that material we build, together with expert witnesses from the specialty involved and with the forensic physician where one is appointed, the attribution analysis: what an average professional would have done in identical circumstances, whether the lawful alternative conduct would have avoided the outcome, and whether the harm belongs to the typical risk of the medical act or to the breach of the duty of care. In defence work, that analysis usually leads to dismissal or to redirecting the matter to the civil or administrative courts. In private prosecution, it makes it possible to sustain a classification that will withstand trial and to quantify compensation on objective criteria, directing the claim also against the insurer under article 117 of the Spanish Criminal Code and against the healthcare facility or the public administration under articles 120 and 121.LIWARD Legal Intelligence Warfare for Defense—, our own methodology combining legal intelligence, case-law analytics, financial and accounting analysis and e-forensics into a single procedural strategy. It is what sets us apart from conventional criminal defence.
Mapping of the proceedings, case-law analysis and early detection of evidentiary weaknesses.
Reconstruction of financial flows and expert examination of the documents that support —or dismantle— the prosecution case.
Chain of custody, admissibility of electronic evidence and traceability of crypto-assets with expert rigour.
Precise decisions at every stage, from the first questioning to the cassation appeal, grounded in risk analysis.
Immediate 24/7 assistance, preparation of the statement and control of precautionary measures from the very first step.
Examination of the case file, financial and digital expert analysis, and identification of the theory of the case.
Design of the defence or prosecution case, submission of evidence and presentation of expert evidence.
Defence at trial and, where appropriate, appeals, cassation and constitutional appeals.
Doctors, surgeons and anaesthetists under investigation following an adverse outcome or a patient complaint
Nursing staff, midwives, technicians and pharmacists summoned in preliminary proceedings
Private clinics, hospitals, insurers and professional companies joined as civilly liable parties
Patients and family members wishing to bring a private prosecution and claim compensation for the harm
An early conversation can change the course of the entire matter. Let us talk before the proceedings decide for you.
Société de Conseil Juridique et Expert es un despacho de abogados con sedes en Madrid, Alicante, Londres y París, especializado en defensa y acusación penal, delitos económicos y corporativos y derecho tecnológico. Trabajamos con orientación estratégica en procedimientos penales complejos, propiedad intelectual y análisis forense avanzado, y prestamos consultoría jurídica, compliance y escudos de protección a particulares y empresas. Atendemos desde Alicante y Madrid, con consulta online en toda España y asistencia al detenido 24 horas. Resuelva sus dudas en las preguntas frecuentes o solicite una primera consulta.
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