Introduction
Private healthcare today rarely involves a simple bilateral relationship. A single procedure may involve a doctor chosen by the patient, a hospital providing an operating theatre, nursing staff and diagnostic facilities, professional bodies, and one or more insurers. The risk landscape broadens when care is provided within the context of healthcare insurance (health insurance). Based on the experience of Belzuz Abogados, S.L.P., specialists in insurance law and medical liability, this multiplicity of parties involved requires a joint analysis of the care relationship, the attribution of liability for harm and the scope of insurance cover. When harm occurs, the decisive issue is not merely to determine whether the medical act complied with the lex artis, but also to establish who bore the cost of each service and which risk materialised.
It is in this context that the so-called hospitalisation contract, or ‘open-door’ contract, comes into play. The term does not refer to a legally defined contract, but rather to a useful construct for describing those cases in which the hospital makes its facilities available to a doctor who may not be on its staff. The hospital provides facilities and ancillary services, whilst the healthcare professional retains clinical management and the direct relationship with the patient. The apparent clarity of this division, however, fades when advertising, admission procedures, billing or organisational practices convey to the user the impression of a comprehensive healthcare service.
Content of the contract and the hospital’s sphere of control
The content of the hospital’s obligation must be reconstructed in accordance with the reality of the service provided. It normally comprises accommodation and custodial services; the availability and maintenance of facilities and equipment; nursing and auxiliary services; the maintenance of clinical records; and an organisational structure capable of ensuring continuity and coordination of care. These are obligations incumbent upon the hospital itself, even if the doctor responsible for the procedure is independent.
Consequently, the doctor’s autonomy does not serve as a general exemption from liability. The hospital may not be liable for the diagnosis or the technique chosen by an external doctor and, at the same time, may be liable for an infection linked to its premises, a failure of equipment, inadequate post-operative monitoring or a delay attributable to its internal procedures. The key lies in the sphere of organisation and control: liability rests with whoever was responsible for preventing the risk that ultimately materialised.
The impression created in the patient’s eyes is also significant. If the centre publicly offers comprehensive care, manages admissions, assigns healthcare professionals and bills for the entire course of treatment, it will be more difficult to argue that it merely rented out premises. Conversely, when the patient chooses and contracts the doctor directly, receives separate invoices and is aware that the hospital merely provides the facilities, attributing liability for the clinical procedure to the establishment requires further justification. It is not enough, therefore, to rely on the name given to the internal contract between the hospital and the doctor: what matters is how the service was presented externally.
The healthcare centre’s civil liability
A claim may be based on contractual or non-contractual grounds, to which consumer protection legislation may be added where the harm stems from functional aspects of the healthcare service. This diversity of grounds does not mean that every instance of care resulting in an adverse outcome constitutes strict liability. For strictly medical acts, it remains necessary to identify a breach of the lex artis, the harm and the causal link. However, the analysis changes when the risk is specifically hospital-related and pertains to the organisation or safety of the service.
Case law allows for a clearer definition of this distribution of risks. The Supreme Court judgement of 18 July 2019, concerning a nosocomial infection acquired in an ICU, held the hospital liable and applied consumer protection legislation to hospital services. The Chamber noted that it is not sufficient merely to have formal protocols for aseptic practice and prophylaxis in place; rather, the hospital must demonstrate scrupulous compliance with them. The ruling thus distinguishes between the establishment’s own liability for safety and organisation and any individual breach of the lex artis by medical practitioners.
In addition, Supreme Court Judgment 853/2024 of 11 June confirmed liability in a case of disproportionate harm following a surgical procedure with serious after-effects. The exceptional and inexplicable nature of the outcome may become relevant as evidence when the harm deviates radically from what might be expected. Both criteria are useful in ‘open-door’ contracts: it must be examined separately whether the harm stems from the medical act or from the hospital infrastructure, and who had the means to explain and prevent it.
In cases of harm of uncertain origin, the availability and ease of evidence take on particular importance. It is difficult for the patient to know whether an internal protocol was followed, whether a piece of equipment was inspected, or whether there was a breakdown in the chain of communication. Hence, medical records, maintenance logs, nursing notes and incident reports are essential. The lack of traceability may be detrimental to the healthcare centre when the explanation for the harm lies precisely within its sphere of control.
Independent doctor, medical staff and nature of the action
Supreme Court Ruling 234/2021 of 29 April (ECLI:ES:TS:2021:1708) directly addressed the liability of a healthcare insurer for harm caused by doctors on its medical staff. The ruling links liability to the scope of the healthcare provision undertaken by the company and also analyses the application of the provisions of Article 20 of the Health Insurance Act (LCS). For the present issue, its significance lies in the fact that the insured person’s freedom to choose from within the network does not necessarily eliminate the liability of the party organising and providing the healthcare network.
The determination of the legal relationship determines the liable party, the jurisdiction and the limitation period. The Supreme Court ruling of 24 January 2023 held that preliminary proceedings brought against the doctor and the hospital to obtain the medical records do not, in themselves, interrupt the limitation period for bringing a claim against the healthcare insurer. The ruling, relating to so-called ‘improper joint and several liability’, advises that all potentially liable parties should be identified and claims brought against them in a timely manner.
In the context of public health insurance, Supreme Court Judgment 169/2024 of 12 February clarified the avenues available to the injured party. They may dispense with the administrative procedure and bring the direct action under Article 76 of the Health Insurance Act (LCS) against the insurer exclusively before the civil courts; however, if they first pursue the administrative procedure and accept a final decision dismissing the claim or granting it only in part, they cannot subsequently use the civil courts to review that decision. Although ‘open-door’ contracts are typically found in the private healthcare sector, this legal principle highlights the importance of defining the procedural strategy from the outset.
Not every collaborative relationship renders the professional dependent on the hospital. However, nor is every clause of independence enforceable against the patient. The assessment must take into account the actual functional dependence and the legitimate expectations created. From a preventative perspective, consistency between contracts, advertising, consent forms, invoicing and clinical practice is just as important as the wording of the clauses themselves.
Consequences under insurance law
The first step for the insurer is to identify the risk in respect of which a claim is being made. If a negligent clinical decision is alleged, the doctor’s professional indemnity policy will normally be the focus of the analysis. If the allegation relates to facilities, support staff, protocols or coordination, the hospital’s healthcare or general liability policy will take centre stage. Often, both types of cover will apply concurrently; it is therefore essential to avoid a fragmented defence and to preserve the right to seek recourse against third parties.
The policy must be reviewed in terms of its subjective, objective, temporal and quantitative aspects: who is insured; which activities and centres are covered; how employees, collaborators and professional bodies are treated; which excesses and sub-limits apply; and which temporal rule determines the cover. Law 50/1980 requires that the general and specific terms and conditions be clear and precise, and that limiting clauses be highlighted and specifically accepted. This distinction between the definition of risk and the limitation of rights is decisive in healthcare litigation.
Supreme Court Ruling 774/2024 of 3 June (ECLI:ES:TS:2024:3046) provides a relevant guideline for interpreting the limits in a group medical liability insurance policy. In view of the confusing and undifferentiated use of the terms ‘victim’, ‘injured party’, ‘damaged party’ and ‘aggrieved party’, the court held that the parents of the injured minor could be considered victims in their own right, provided that each compensation payment complied with the sub-limit per victim and the total sum did not exceed the limit per claim. The decision reinforces the need for precise drafting of aggregate limits and sub-limits.
Intermediate case law completes this picture. Supreme Court Judgment 234/2021, of 29 April, considers the default regime applicable to healthcare insurers when, in addition to providing the agreed service, they are liable for the deficient provision of care. For its part, Supreme Court Judgment 888/2021 of 21 December (ECLI:ES:TS:2021:4745) reiterated that the acceptance of interim payments by the injured party does not constitute a waiver of default interest nor does it justify failure to make full payment. Similarly, a mere offer without payment or deposit does not in itself negate the default.
With regard to default, Supreme Court Judgment 853/2024 of 11 June rejected the argument that the existence of disproportionate damage or a discrepancy between court instances justified delaying the accrual of interest under Article 20 of the Insurance Act (LCS). The insurer had made neither an offer nor a deposit, nor did it prove that it was unaware of the claim; consequently, interest was set to run from the date of the claim. More recently, Supreme Court Judgment of 15 April 2025, in a case involving serious neurological injuries during childbirth, set the starting point as the date of the first court claim because there was no evidence of prior knowledge on the part of the company. Both rulings show that the decisive factor is proof of knowledge and the diligent conduct displayed following the incident.
Prevention and coordinated management of incidents
For the hospital, prevention begins with a realistic definition of roles and consistent documentation. External professionals must be identified, their credentials and insurance verified, the use of facilities regulated, and protocols established for coordination, monitoring and emergency response. Internal contracts are insufficient if the centre’s external operations convey a different model of care.
For the doctor, it is essential to document their relationship with the establishment, to adhere to its protocols and to report without delay any incident that could compromise the hospital’s organisation. Informed consent does not replace these obligations nor does it allow risks arising from poor organisation to be passed on to the patient.
Conclusion
The hospitalisation or ‘open-door’ contract does not make the hospital liable for all damages, but nor does it allow it to automatically hide behind the doctor’s independence. The attribution of liability depends on the service undertaken, the sphere of control, the impression created and the specific cause of the harm.
From an insurance law perspective, this distinction determines which policy is liable, which limits apply, how the different layers of cover interact, and how policyholders and insurers should coordinate. The legal doctrine established between the Supreme Court judgement of 18 July 2019 and the rulings of 2025 — with particular reference to Supreme Court judgements 234/2021, 888/2021, of 24 January 2023, 169/2024, 774/2024 and 853/2024— confirms the importance of correctly identifying the liable provider, choosing the appropriate legal avenue, accurately interpreting limits and sub-limits, and demonstrating diligent management of the claim. For Belzuz Abogados, S.L.P., specialists in insurance law and healthcare liability, the best protection remains preventative: clear contracts, consistent information, traceable documentation and integrated claims management.