Two aspects should be distinguished: the one which derives exclusively from the careless conduct of the doctor and the responsibility hold to the medical centre.
It is important the distinction between the responsibility arisen from a contractual and extra-contractual relationship, as their foundations are different and their deadlines to execute the action are different as well, in the last case much shorter.
Generally, the civil liability can be exercised on the margin of the criminal responsibility if the civil action has been kept in criminal proceedings. It will affect damages occasioned by the private medical centres, opposite the patrimonial liability of the Public Administration which will be kept for the action of public hospitals.
Any action or omission that causes damage for any kind of fault or negligence will provoke the birth of the civil liability of the health worker and/or the medical centre. Unlike offenses, where the civil liability will arise only if the described behaviour is included in certain articles of the Penal Law, in the case of civil liability its acceptance will be taken by the Judge in accordance with the articles of the Civil Law, its jurisprudence and the proven result of the lawsuit.
Essentially, the distinction between the two big fields of civil liability (contractual and extra-contractual) will be done according to if there is a contractual entailment of if there is not or if the behaviour –even existing an extra-contractual entailment- is alien to the contract, as long as we are dealing with private doctors or medical centres. The regulation of both cases is different (contractual or extra-contractual), although the purpose of both systems is to compensate for the damages.
Let’s keep in mind that the current health professional usually works in a team, although sometimes they work individually, that is why it is important to distinguish the performance of each member of the team in the production of the damage.
In order to have liability we need an action or omission which produces damage, a bond or tie between one and the other and that there is no obligation to put up with the damage as it is antilegal.
About the medical issues, these questions will be related to the performance of the health worker according to the “lex artis”, that is to say: the habitual medical practice and techniques suitable for the patient according to the medical advances and the available means and resources.
Furthermore, the relation of the contractual bond with the health worker has been seen as a contract for a specific project or result if it is not a case curative medicine but voluntary (ex. cosmetic surgery or ophthalmology to avoid the use of glasses, according to recent jurisprudence). On the contrary, the purely curative medicine will impose the use of all the scientific means of the centre and, therefore, there is not a obligation to obtain a result but a leasing of a service.
In the curative medicine the Spanish jurisprudence has been establishing an obligation of means, that is to say, it is not a leasing of a project with obliges to produce a favourable result but, just like the relation between lawyer and client, it is a leasing of services, medical services to develop the curative process (in order to get some improvement and/or recovery) with all the technical and human means within their reach, because the doctor, as a Supreme Court states, is not obliged to cure. The voluntary medicine (not curative) might be more like a contract for a specific project or result, but normally our Courts deal with the leasing of services.
The fault of the medical professional, with omission of the demanded diligence, will be stated in each case according to the above mentioned circumstances: the obligation of having all the means and knowledge but not the result.
The conclusion is that if there is a harmful result as a consequence of a negligent behaviour, there will be the right of compensation except if the evidence is not reflected in that behaviour and there is damage all the same. That is to say, the guilt or negligence will have to be proved and this proof corresponds to the plaintiff. It is convenient to emphasize that the Supreme Court has already stated that the legislation on consumers does not apply to medical liability as such, only to the organization of health services, but not to the responsibility of the medical professionals.