Difference between malpractice and medical negligence: what you need to know

In Spain, the terms “malpractice” and “medical negligence” are often used as synonyms, but they do not mean exactly the same thing. “Malpractice” is a colloquial expression referring to healthcare actions that deviate from the *lex artis ad hoc* (standard of care), that is, from the professional standard required under the circumstances of the case.

“Medical negligence” is the legal category that allows for liability to be imposed when this deviation from the *lex artis* causes harm that should have been avoided by exercising due diligence.

In other words, there can be an adverse outcome without negligence (due to inherent or unavoidable risks), and there can also be negligence without bad faith: liability is based on a lack of diligence, not on intent. Distinguishing between these two concepts is key to correctly addressing the claim and the deadlines.

Essential legal framework in Spain

Civil scope (private healthcare and professionals)

• Extracontractual liability: arises when there is no direct contract with the professional/centre (*art. 1902 CC*). It requires proving a culpable or negligent act or omission, damage, and a causal link.
• Contractual liability: when there is a contractual relationship (*art. 1101 CC*). The burden of proof varies according to the type of obligation (means or result) and clinical documentation.
• *Lex artis ad hoc*: the Supreme Court defines it as the criterion for assessing the correctness of the medical act considering available science, means, specialty, and circumstances of the case.

Administrative scope (public healthcare)

• Liability of the Health Administration (*Ley 40/2015*): compensates for the unlawful damage caused by the normal or abnormal functioning of the service, including deviation from the *lex artis*.
• Procedure: claims are first made through the administrative route; subsequent appeals correspond to the contentious-administrative jurisdiction.

Criminal scope (serious cases)

• Injury or homicide due to professional negligence (*Código Penal*): only when the breach of the objective duty of care reaches a level of seriousness and fits into criminal types of negligence.
• The criminal process does not automatically replace the civil/administrative compensation route; it is advisable to evaluate strategy and timing.

Informed consent and clinical documentation

• Law 41/2002 on Patient Autonomy: consent must be prior, free, specific, and sufficiently informed. It is usually verbal, but must be documented in writing for surgical interventions, invasive procedures, and significant risks.
• The lack of information can generate liability on its own, even if the technique was correct, if the patient was not warned of relevant and avoidable risks.
• Medical record: the patient has the right to access their record and obtain copies. It is the evidentiary basis for any claim.

When is there “malpractice” and when is there “medical negligence”?

• Correct act with adverse outcome: there is no negligence if the outcome results from an inevitable typical risk and actions were taken in accordance with the *lex artis* (standard of care) and with adequate informed consent.
• Deviation from the *lex artis*: there is malpractice and, if the damage is a consequence of that deviation, there is compensable negligence.
• Lack of informed consent: this can generate liability even if the technique was correct, if the risk that materialised was foreseeable and not disclosed.
• Diagnostic delays: there is negligence when the delay, attributable to a lack of reasonable diligence, worsens the outcome or deprives of therapeutic opportunities.

Deadlines for claims

• Public health (patrimonial liability): in general, 1 year from the cure or stabilization of the sequelae to file an administrative claim.
• Private health:
  • Extracontractual: 1 year from the consolidation of the damage (*art. 1968 CC*), with the possibility of interruption by a formal claim.
  • Contractual: 5 years for personal actions arising after the 2015 reform (*art. 1964 CC*). There are transitional regimes for prior events.
• Criminal: the limitation periods depend on the applicable criminal type. A criminal complaint can affect civil/administrative computations; it is advisable to plan the procedural strategy.

The exact computation of the dies a quo may vary (for example, in successive or hidden damages). An early review of the file by a legal and expert team is crucial.

How to demonstrate medical negligence

• Complete medical history and traceability of decisions: reports, medical orders, consents, test results, nursing notes.
• Independent medical expert: assesses whether there was a deviation from the *lex artis* (standard of care), the causal link, and the extent of the damage.
• Proof of damage: sequelae, disability, loss of opportunity, periods of leave, medical expenses, need for future support.
• Causal link: reasonable and proven relationship between conduct and outcome, according to scientific and jurisprudential criteria.
• Supplementary documentation: employment report, rehabilitation reports, invoices, photographs, testimonies.

What compensations can be claimed?

• Bodily injury and sequelae (traffic scale as a guiding criterion in many jurisdictions).
• Moral damage and loss of quality of life.
• Loss of earnings and patrimonial damage (income not received).
• Medical, pharmaceutical, prosthetic, rehabilitation expenses, and home adaptations.
• Support from third parties and future technical aids.

GVC Lawyers: specialists in medical negligence in Murcia

At GVC Lawyers (García Valcárcel & Cáceres), located at Plaza Fuensanta, 3 – 6ºB, 30008 Murcia, we have been defending the rights of patients and families in claims for medical negligence for decades. Active in this field since 1998, we combine lawyers, legal experts, and medical experts to assess the viability and maximise the chances of success in each case.

• Proven experience in healthcare civil liability, both in public health (administrative and contentious-administrative routes) and in private health (civil route).
• Rigorous technical assessment of the *lex artis* (standard of care) and the causal link with reference experts.
• Close attention, clarity, and strategic prudence from the first consultation.

Our working method in healthcare claims

• Feasibility analysis and initial consultation with you.
• Obtaining and reviewing complete clinical documentation.
• Commissioning an expert report from independent experts.
• Claiming through administrative channels or filing a lawsuit, as appropriate.

Our tradition dates back to 1946. The lion in our emblem represents our way of practicing: nobility, clarity, honesty, and generosity. We combine experience, trust, quality, and values to accompany you with legal security.

We also assist you with family and inheritance matters

In addition to our specialisation in medical negligence, we are a comprehensive firm in Private Law. If you are looking for family law lawyers or inheritance lawyers in Murcia, our team advises you on divorces, parental measures, settlement of joint property, successions, and inheritance partitions, as well as in real estate, commercial, and succession disputes.

• Family law lawyers: stable agreements, contentious proceedings, and mediation.
• Inheritance lawyers: wills, legitimate shares, collation, partitions, and defence of succession rights.
• Murcia lawyers: local attention with national reach.

Frequently Asked Questions

• Is there always negligence when there is a bad outcome? No. Only if there was a deviation from the *lex artis* (standard of care) and that deviation caused the harm.
• Can I claim for lack of informed consent? Yes, especially in high-risk interventions that should have been informed in writing.
• What is the time limit if it was in a public hospital? Generally, 1 year from the healing or stabilization of sequelae to initiate the administrative route.
• And if it was in a private clinic? It can be 1 year (extra-contractual) or 5 years (contractual), depending on the case. It is crucial to choose the appropriate route.
• Do I need a medical expert? Almost always: the expert testimony is the cornerstone to prove the *lex artis* (standard of care), the harm, and causation.

Contact and Initial Assessment

If you suspect medical negligence or need guidance on malpractice, we are here to listen. At GVC Abogados, we will study your case, gather your medical history, and, with medical experts, assess the viability of the claim. We are located at Plaza Fuensanta, 3 – 6ºB, 30008 Murcia.

This article is informative and does not constitute individualized legal advice. For a specific assessment, contact us to schedule a consultation.