Introduction
The Insurance Department at Belzuz Abogados, S.L.P. analyses a recent Supreme Court ruling that addresses key issues in healthcare liability and insurance law.
The Chamber concludes that there was no life-threatening emergency that justified omitting informed consent in an instrumental delivery. Although no malpractice was proven in the technical execution of the delivery, the patient’s right to be informed was considered to have been violated, with a causal relationship between the intervention and the injuries being established. The Court partially upheld the appeal and ordered the defendants to jointly and severally compensate the plaintiff for loss of opportunity resulting from the lack of information, setting the compensation at €34,995.95. This is not a doctrinal shift, but rather a reaffirmation of the importance of informed consent in the field of obstetrics.
There is no change in case law criteria
The ruling does not introduce any new doctrine nor does it justify the alarm that has been generated. It reiterates an already established criterion: informed consent is mandatory in non-urgent instrumental deliveries.
The Chamber concludes that there was no vital urgency for the mother or the foetus that would allow this consent to be omitted in accordance with Article 9.2 of Law 41/2002.
Had such urgency been proven, the gynaecologists would have been exempt from providing it.
An unusual ruling: the Supreme Court reviews the assessment of the evidence
It is striking that a question of evidence assessment has been successful in cassation. Although the Supreme Court’s function is not to reinterpret the evidence – a doctrine reiterated in numerous rulings – in this case, the Chamber does find a clear error in the assessment made by the Provincial Court, concluding that there was no immediate risk that would justify dispensing with informed consent.
The Third Legal Grounds of the ruling state:
It is the case law of this Chamber, expressed on this occasion in judgments 330/2013 of 25 June 2014; 208/2019, of 5 April, and, more recently, 391/2022, of 10 May, and 653/2022, of 11 October, among others, that it holds that:
“It is not possible to challenge the joint assessment of the evidence, or in other words, the party cannot seek a new joint assessment different from that of the court of first instance, which has sovereign authority in this matter ( Supreme Court rulings of 13 November 2013, appeal no. 2123/2011 (EDJ 2013/225907); 8 October 2013, rec. 778/2011 (EDJ 2013/201118); 30 June 2009, rec. 1889/2006 (EDJ 2009/225070) and 29 September 2009, rec. 1417/2005) (EDJ 2009/225061); (ii) that it cannot challenge this joint assessment by contesting specific evidence or seek to give priority to a specific means of evidence in order to obtain conclusions that are biased and contrary to the objective and impartial conclusions of the court (SSTS of 11 December 2013, rec. 1853/2011 (EDJ 2013/253135) 14 November 2013, rec. 1770/2010 (EDJ 2013/219939); 13 November 2013, rec. 2123/2011 (EDJ 2013/225907) and 15 November 2010, rec. 610/2007 (EDJ 2010/246596), which cites those of 17 December 1994, rec. 1618/1992 16 May 1995, rec. 696/1992; 31 May 1994, rec. no. 2840/1991; 22 July 2003, rec. 32845/1997; 25 November 2005, rec. 1560/1999) because “the fact that certain pieces of evidence considered relevant by the plaintiff are not taken into consideration is irrelevant and does not mean that they have not been duly assessed by the contested judgment, without the requirements of reasoning obliging this judgement to be expressed ( Supreme Court ruling of 8 July 2009, rec. no. 13/2004) (EDJ 2009/234618) unless arbitrariness or manifest error is evident” (Supreme Court rulings of 15 November 2010, appeal no. 610/2007 (EDJ 2010/246596) and 26 March 2012, appeal no. 1185/2009) (EDJ 2012/49926).”
However, our High Court departs from this line and reassesses the evidence; in other words, it rules on the assessment of the evidence carried out by the Provincial Court. The judgment identifies the error in the assessment of the evidence in the Second Legal Grounds of the judgment:
“In short, there is a clear error in the assessment of the evidence in the sense that the plaintiff was in a situation of immediate and serious risk to her physical or mental integrity, requiring urgent intervention to dispense with her informed consent, which is one of the grounds for her claim. The plaintiff was also conscious under epidural anaesthesia and was not deprived of her consciousness and willingness to be informed and to give consent. Nor was the foetus at risk of viability or danger to its life, with no signs of foetal distress and under control with monitoring.”
Would anything have changed if the hospital or other professionals had been sued?
The action was directed solely against the gynaecologists, who were convicted. However, it is worth considering whether the ruling would have been different if the hospital, its insurer or the midwife had also been sued.
Article 4.3 of the Patient Autonomy Law, as stated on page 21 of the ruling, extends the obligation to provide information not only to the doctor in charge but also to “all professionals who provide care during the process.”
The ruling does not specify the type of professional relationship, whether commercial or employment-related, between the doctors and the hospital, although this issue was apparently settled by the Supreme Court ruling of 5 November 2025, which ultimately convicted the hospital for the actions of professionals with whom it had a commercial relationship based on a kind of in vigilando liability.
The question arises because the law places the obligation to inform on the professionals and not on the centre. If the hospital had also been sued, would it have been jointly liable for the breach of this duty, which only concerns the professional? Can the midwife be exempted from the obligation to inform? What about other professionals who have a tangential involvement in the care?
It should not be forgotten that in the present case, the clinical documentation did indeed contain an informed consent form for anaesthesia, which expressly stated: “some studies indicate that epidural deliveries more frequently use techniques (vacuum and forceps) to guide the baby through the birth canal at the last moment of delivery”. However, as explained in section 5) of the Seventh Legal Grounds of the judgment, this consent was not considered sufficient.
The lack of information as a loss of opportunity, not as autonomous moral damage.
Although traditionally the lack of information has been treated as autonomous moral damage, the Chamber has opted here to classify it as a loss of therapeutic opportunity.
It is striking that, although there is no malpractice in the present case, see page 24 of the judgment:
“However, in order to continue with the task of quantifying the damage, it is necessary to start from the basis that the appealed judgment ruled out the existence of malpractice in the performance of the instrumental delivery that caused the damage, and that the appeal is not based on that ground, but on the violation of the right to informed consent.”
A loss of opportunity is ultimately recognised:
“It is the doctrine of this court to compensate, in such cases, for the loss of opportunity caused by the omission or insufficiency of information suffered, and not to provide full or complete compensation for the physical damage that constitutes the typical risk that was not disclosed. In short, proportional or fractional liability is opted for, insofar as full compensation is reserved for concurrent negligence in the act or intervention performed, which is not the case.”
If informed consent for instrumental delivery had been given preventively prior to delivery, would the outcome have been the same? What if it had been given and signed during labour? How should the professionals have acted? Is the obligation to inform shared by both professionals? And the hospital? And the thorniest question for last: if the application of forceps or vacuum extraction had violated lex artis, would the same logic of compensation still apply?
Conclusion and practical relevance
This ruling does not represent a doctrinal shift, but rather reaffirms the requirement for informed consent in non-urgent instrumental deliveries. Although no malpractice is apparent, it ultimately leads to a loss of opportunity that is eligible for compensation.
At the Insurance Department of Belzuz Abogados, S.L.P., as specialists in Healthcare Liability and Insurance Law, we consider this ruling to be of particular relevance to solicitors, insurers, healthcare professionals and hospital managers.