The theory of the loss of the opportunity or chance, has been applied in Colombia through the Jurisprudence of the Council of State to resolve a large number of situations, derived from the extra-contractual responsibility of the State in medical matters, when it comes to cases in those who suffer the impairment of an expected advantage or prevent the recovery of health. The foregoing occurs, in many cases, due to the negligent act or omission of the medical, healthcare or administrative personnel; however, it is necessary to clarify that it is very difficult to demonstrate whether this act or omission has a causal impact between the final result and the actions of the doctor. For this reason, it is intended to analyze what have been the criteria developed by the Highest Administrative Litigation Court in medical matters and what have been the criteria applied to determine whether there is room for the obligation to compensate the victim, in situations in which It deprived it of obtaining an improvement or avoiding damage, that is, establishing whether there really was a loss of an opportunity or whether it was only a causal uncertainty. The foregoing led to the formulation of the following legal problem that will allow the development of this work, which is synthesized in the following question: Do the jurisprudential criteria established by the Council of State uniformly guarantee the rights of the victim, when they go to the application of the loss of opportunity in matters of medical liability in Colombia? In this context, it is necessary to establish that the loss of opportunity in general terms occurs when a subject has the possibility of obtaining a benefit and this is not achieved; This is why, a series of questions and hypotheses arise about whether that agent may be responsible for the active or omissionate behavior that triggered the event that affected the victim, by losing a possibly beneficial result. This without ignoring that, although the positive result is subject to chance and uncertainty, the affected person or their relatives in the event of death, must be compensated for the loss of their chance. In this vein, it is evidenced that the theory of loss of opportunity and compensation for damages to the person has a concrete effect on non-contractual financial liability in Colombia, since it allows proving the causal incidence of that fault of the person. medical staff. In this sense, it is necessary to point out that this document was constructed from the enactment of the 1991 Constitution, having as a normative framework what is indicated in article 90 when introducing the notion of unlawful damage3 in our legal system.
publication date
May 19, 2021 1:44 PM
Research
keywords
Analysis of Article 90 of the Political Constitution of Colombia
Jurisprudence on medical responsibility in Colombia
Medical malpractice as a loss of opportunity for patients
