In short, this crisis has shown that numerous patients who have suffered a delay in the diagnosis of their breast cancer as a result of non-compliance or deficient adherence to early breast cancer detection protocols.
Although the effects of this crisis have not yet been fully realized, it is foreseeable that the situation will lead to the opening of a significant legal battle by the injured parties and/or their families. For the time being, the Public Prosecutor’s Office has already opened an investigation, although its outcome is uncertain because in criminal jurisdiction it is essential to individualize responsibility: who is responsible for the culpable action or omission without the possibility of prosecuting a joint action. However, in the present case it seems difficult to identify exactly where the error occurred in the chain of care.
From the perspective of health law, the first consideration is that any claim by the injured parties and/or their relatives must be limited to the requirements of the financial liability of the public administration set out in Articles 32 et seq. of Law 40/2015 on the Legal Regime of the Public Sector, requiring that the damage be unlawful and that there be a causal link between said damage and the action or omission of the Administration. In other words, there must have been a violation of lex artis and the damage must have been caused by defective healthcare.
Likewise, the burden of proof borne by potential claimants cannot be overlooked, as they must substantiate their claim for compensation with imaging evidence proving that the patient required closer monitoring or additional screening or testing.
Furthermore, the viability of the claim is contingent upon the patient having experienced a worsening of her prognosis as a result of the failure to perform additional tests or to provide closer monitoring.
On the other hand, with regard to causality, it must be assessed whether, even if the diagnostic test had been performed earlier, the result would have been different. All of the above makes it necessary for each case to be analyzed individually, as class actions are difficult to pursue legally.
- Means of Redress:
- Criminal: As noted above, the Public Prosecutor’s Office has already opened an investigation to determine whether the facts constitute a crime and who is responsible. Criminal proceedings will determine not only any criminal liability but also civil liability arising from the crime for those who have suffered damage and decide to bring a claim in this jurisdiction.
- In this regard, attention must be paid to the development of the criminal proceedings, especially to the connection that the facts declared proven may have with regard to subsequent proceedings in other jurisdictions.
- Administrative (Contentious-administrative): Through the filing of an administrative claim for financial liability against the Health Administration, in proceedings that are not directed against specific individuals, but rather against the Andalusian Health Service as a whole.
- Civil: Finally, in civil jurisdiction, through a civil lawsuit in direct action under Article 76 of the Insurance Contract Law against the insurer covering the professional civil liability of Andalusian Health Service workers.
- Applicable Case Law
Cases of late diagnosis of breast cancer due to faulty screening by the Andalusian Health Service are a clear practical example of the theory of loss of chance, which has been exhaustively analyzed in case law. One example is the Supreme Court ruling of 3 December 2012, rec. 815/2012, which defines it as ‘the uncertainty as to whether the omitted medical action could have prevented or improved the patient’s poor state of health, with the consequent entry into play, when assessing the damage thus caused, of two elements or factors that are difficult to specify, namely the degree of probability that such action would have produced the beneficial effect, and the degree, entity or scope of that effect’.
This doctrine, applied to the present case, translates into the worsening of the prognosis, the reduction in survival or increase in mortality that the patient has experienced as a result of the screening not being carried out in time or being carried out defectively: e.g. from tumour stage I, with a real expectation of cure, to stage IIIA with a high 5-year morbidity and mortality rate.
As for quantifying the damage caused by this loss of opportunity, the courts opt for applying a mortality/survival percentage or setting a lump sum compensation amount, weighing up all the circumstances involved.
The amounts of compensation awarded by the courts in cases of loss of opportunity due to healthcare liability vary and depend on each specific case, with the range starting at €3,005 awarded by the Contentious-Administrative Chamber of the High Court of Justice of Andalusia, based in Seville, Section 1, in its ruling of 12 June 2025, No. 563/2025, rec. 58/2025, or €5,000 awarded by the High Court of Justice of Madrid, based in Madrid, Section 1, in its ruling of 12 June 2025, No. 563/2025, rec. 58/2 1st, in its ruling of 12-06-2025, no. 563/2025, rec. 58/2025, to the €5,000 awarded by the Body, sec. 3rd, in its ruling of 27-02-2025, no. 205/2025, rec. 413/2023, €5,000, and may reach €120,000, as recognized by the Administrative Chamber of the High Court of Justice of Andalusia based in Malaga, sec. 3rd, in its ruling of 19-03-2025, no. 623/2025, rec. 879/2024, or even the €270,000 recognized by the Contentious-Administrative Chamber of the TSJ Andalusia, based in Granada, sec. 1st, in its ruling of 15 July 2025, no. 3206/2025, rec. 981/2022.
However, what is striking when analyzing recent case law is that this is not a new controversy, and that in recent years there has been a steady stream of cases in the courts. So much so that the High Court of Justice of Andalusia has already tried a very similar case of delay due to screening errors in breast cancer, in which a lump sum compensation of €25,000 was awarded (High Court of Justice of Andalusia, Seville, Contentious, Sec. 4, S 03-06-2025, no. 777/2025, rec. 640/2023).
- Insurance Law Perspective
As indicated above, the professional civil liability of the Andalusian Health Service and its employees is covered by an insurance policy. However, this does not mean that any claim is automatically covered. The first step is to determine the time frame covered by the policy in order to establish not only which insurer provides coverage for the claim, but also which policy year applies.
From there, the policy’s limiting and exclusionary clauses must be analyzed in detail. In particular, the excess, if any, the coverage limits, and the coverage exclusions that may be recognized in the policy for non-consequential moral damages, waiting lists, etc.
Consequently, the injured parties and/or their relatives are free to take action against the Administration’s insurer, but if they decide to do so, they must abide by the limits and provisions of the insurance contract, especially in the case of high-risk policies such as these, where the autonomy of will expressed in the policy takes precedence over the provisions of the law.
- Conclusion:
Although it is foreseeable that this episode of breast cancer screening will give rise to a multitude of claims, it is necessary to analyze the viability of each case individually, with the injured parties and/or their relatives being able to choose from various channels to claim compensation, which in practice is based on a loss of therapeutic opportunity due to the delay in the diagnosis/treatment of breast cancer.
In conclusion, at Belzuz Abogados, S.L.P., as a law firm specializing in health and insurance law, we will continue to monitor the evolution of this crisis and its future impact in the courts. This crisis will set an important precedent in Spanish health case law.