What evidence do I need to prove medical negligence?

Proving medical negligence requires establishing three elements: 1) that the healthcare action deviated from the *lex artis ad hoc* (what a competent and prudent professional would have done in that context), 2) that there is a certain damage (injury, sequelae, death, or economic loss), and 3) that there is a causal link between that action and the damage.

The key evidence lies in obtaining a complete medical history and a solid expert report that connects these elements.

The three pillars of the claim: fault, damage, and causation

• Fault or breach of the *lex artis ad hoc*: deviation from protocols, clinical guidelines, and good practices applicable to the specific case.
• Compensable damage: injuries, sequelae, days off work, expenses, lost profits, and moral damages.
• Causal link: direct or highly probable relationship between the healthcare action and the harmful result, ruling out alternative causes.

Essential evidence you must gather

1) Complete medical history

• Emergency reports, hospitalisation, operating room, and discharge.
• Nursing notes, medication and vital signs, medical orders, and progress notes.
• Laboratory results, pathological anatomy, and imaging (X-rays, CT scans, MRIs, ultrasounds, DICOM).
• Partogram, anaesthetic and resuscitation protocols, operating room sheet, and safety checklists.
• Referrals, consultations, appointment schedules, and waiting times.

The *Ley 41/2002 de autonomía del paciente* (Law 41/2002 on Patient Autonomy) recognises the patient's right to access their medical history and establishes minimum retention criteria (usually, at least 5 years for essential clinical records). If the healthcare centre does not provide the documentation, it can be requested judicially for exhibition.

2) Documentation on informed consent

• Signed consent forms and their informed version: typical risks, alternatives, and consequences of not treating.
• Record of verbal explanations, witnesses, and delivery of brochures or attachments.

The lack or deficiency of informed consent can generate autonomous liability for violation of the right to information, even when the technique applied conforms to the *lex artis*.

3) Medical expert reports

• Liability expert report: analyses whether there was a breach of the *lex artis*, diagnostic delay, indication errors, or technique errors.
• Causation expert report: links the care deficit with the damage suffered, assessing alternatives and probabilities.
• Expert report on bodily harm valuation: assessment of sequelae, days of detriment, and future needs, usually supported by the Baremo.

The expert report is the key evidence: without it, the claim rarely succeeds.

4) Witness testimonies and party declaration

• Eyewitnesses (family members, companions, non-licensed personnel).
• Interrogation of doctors and the healthcare centre.

5) Protocols, guidelines and scientific literature

• Official clinical guidelines and protocols in force at the time of the events.
• Technical data sheets for medications and safety alerts.

They serve to objectify the applicable lex artis (artistic law) at the time of the medical act.

6) Other useful elements

• Communication with the centre (emails, internal complaints, complaint forms).
• Symptom diary, photographs of injuries and expense invoices.
• Reports from Health Inspection or the Patient Care Service.

How to obtain and preserve the medical history

• Request it in writing from the Admissions/Clinical Documentation Service. Law 41/2002 protects your right of access.
• If there is a denial or delay, request judicial exhibition or preliminary proceedings for its delivery.
• Keep complete copies of medical images (DICOM format), along with their metadata.
• Avoid manipulating original documents; provide certified copies when possible.

Burden of proof and when it is modulated

As a general rule, the patient must prove the facts constituting their claim (art. 217 LEC). However, the courts have accepted modulations in cases such as:

• Disproportionate damage: when the outcome exceeds what is expected with the technique used and the rules of experience indicate a high probability of malpractice, the professional's duty to explain is intensified.
• Ease and availability of evidence: if the documentation is in the possession of the centre, special cooperation is required; the lack or defective medical history may operate against the defendant.
• Lack of informed consent: generates specific liability for violation of the right to self-determination, regardless of technical correctness.

Remember that, except in very specific cases (e.g., certain aesthetic surgery), the medical obligation is one of means, not of results: what is required is to act in accordance with the lex artis (artistic law), not to guarantee healing.

Deadlines and avenues for claiming

• Public health (patrimonial liability): 1 year from the stabilization of the sequelae to claim before the Administration. If rejected or there is no response, through contentious-administrative proceedings.
• Private health:
  • Civil non-contractual route: 1 year from stabilization of the damage.
  • Civil contractual route (direct relationship with professional/centre): 5 years.
• Criminal route: in serious cases (negligent injuries), it may be strategically assessed.

Correctly identifying the deadline and the appropriate procedure is critical to avoid losing the action. At GVC ABOGADOS, a law firm in Murcia, we analyse the viability and the suitable channel without obligation.

Common mistakes to avoid

• Claiming without an independent and reasoned expert report.
• Not requesting the complete medical history, including attachments and images.
• Allowing deadlines to pass due to ignorance of the applicable procedure.
• Confusing poor evolution with malpractice: there are damages not attributable if actions were in accordance with the *lex artis* (standard of care).

Quick evidence checklist for your case

• Complete medical history (emergency visits, hospitalisation, operating room, nursing, tests and results).
• Informed consent and documents of provided information.
• DICOM images and metadata of radiological tests.
• Witnesses and communications with the centre.
• Expert report on liability, causation, and damage assessment.
• Guidelines/protocols in force at the time of the events.

How we handle your claim at GVC ABOGADOS (Murcia)

Since 1998, at García Valcárcel & Cáceres (GVC Abogados), we have defended the rights of patients in medical negligence cases. Our method combines lawyers, legal experts, and independent medical experts:

• Feasibility study and evidential strategy with a chronology of the case.
• Obtaining and auditing the medical history and technical documentation.
• Commissioning specialised medico-legal expert reports.
• Prior claim and, if necessary, judicial demand in the appropriate procedure.

Additionally, as a law firm in Murcia, we have specific teams in family law and inheritance, so if your case leads to collateral needs (e.g., incapacities, guardianships, pensions, estate planning), our family lawyers and inheritance lawyers can provide comprehensive advice.

Contact us

• GVC ABOGADOS (García Valcárcel & Cáceres) – Plaza Fuensanta, 3 – 6ºB, 30008 Murcia.
• Prior appointment for feasibility assessment and expert report budget.

Frequently asked questions

I signed the informed consent; can I still claim?

Yes, if there was a breach of the *lex artis* (standard of care) or if the consent was defective (insufficient, late, or non-personalised information). The signature does not shield against malpractice.

Is the expert report essential?

In practice, yes. Except in exceptional cases (e.g., glaringly disproportionate damage), the expert report is decisive to prove breach and causation.

What compensation am I entitled to?

It depends on the assessed damage (sequelae, personal injury, expenses, and lost profits) according to the criteria of the *Baremo* (compensation scale) and case law. A medico-legal assessment is necessary.

Conclusion

To demonstrate medical negligence, you need impeccable documentary evidence (medical history and consent), a solid expert analysis, and a procedural strategy that respects deadlines and the appropriate route. At GVC ABOGADOS, a law firm in Murcia, we accompany you throughout the process with a technical and human approach. If you are looking for lawyers in Murcia with experience in medical negligence, as well as family lawyers or inheritance lawyers, we are at your disposal to help you protect your rights and those of your family.