A pathologist from Alicante has been sentenced to nine months in prison and a two-and-a-half-year ban on practising medicine for killing someone by being negligent in their work. His medical error prevented the early detection of cancer in a patient who subsequently passed away from melanoma. This is what a criminal court in Elche gave the doctor as a penalty. He then appealed to both the Provincial Court and the Supreme Court, where the decision was maintained. Even though the sentence doesn’t mean that the defendant will actually go to jail, the family of the deceased, who are acting as private prosecutors through lawyer Juan Miguel Gualda, have asked for it to be carried out. The Official Medical Association and the Regional Minister of Health have both been told that the doctor can’t practice medicine for the next two and a half years.
The legal process, which is now coming to an end almost 20 years later, started in September 2003 when the woman went to a health centre in Elche to have treatment for moles on her back. Two months later, the moles were removed. A pathologist did a biopsy on the samples and found that they were not cancerous, thus she did not need any further testing. In April 2009, the woman went to the emergency hospital with a tumour in her left armpit and was admitted. They found out at the centre that her cancer had already spread a lot, and she died at the age of 42 before the end of the year.
The Court and the Supreme Court agreed with the finding that the pathologist only looked at two of the three samples when the melanoma was taken out. The one that wasn’t looked at was the one where the cancerous cells were identified. “The melanoma was the tumour that caused the metastasis,” the decision said.
The family first filed an administrative complaint, and in January 2013, the Regional Ministry of Health paid them back, saying that the administration had done a bad job and caused harm. The expert assessment that led to the compensation award said that the mistake kept the patient from getting the right medication that could have stopped the tumour from growing. After this decision, the family took the doctor to court for a crime.
The judge there decided that there was gross negligence because there was a 95% probability of cure and prevention of metastases if the disease was caught early and treated properly. But the judge used an extenuating factor to explain the long delays. The complaint was filed in January 2015, but it took more than seven years to go to court. The pathologist’s appeals have put off the implementation of the punishment.
The resources
The appeal to the Provincial Court was put off for two years. The Eleventh Section agreed with the judge’s conclusions and disagreed with the doctor’s arguments. The ruling says, “We start from the premise that medicine is not an exact science and is subject to unforeseen events.” It also says that the judge based his decisions on the reports made by the experts. The Court says, “The appellant makes a biased and interested interpretation of the evidence, forgetting that the judge looked at all the evidence and didn’t find any gaps or mistakes, so the sentence must be upheld.”
That decision said that the pathologist “did not follow proper lex artis (the standards of quality required of professionals), which led to the patient’s death because he was not careful enough when looking at the mole that was taken off and his report on it, which said that the lesion was not cancerous.” The judge noted that if the defendant “had examined the central section of the sample received according to proper medical practice, he would have described it as a melanoma, since said section left no doubt about its malignancy.” The verdict says that “we are dealing with gross negligence” and that “the predictability of the outcome if appropriate conduct had been adopted is more than evident.” The judge remembers that the expert studies that were given to the case said that with early identification and the right treatment, there was a 95% possibility of a cure and stopping the cancer from spreading. In this case, he remembers that the defence said that a histology report on the testing should have been made at the time, but it wasn’t since the defendant sent in a report saying the sample was benign. The judge said, “The medical intervention that was left out could have stopped or improved the melanoma’s outcome.”
The doctor tried to appeal to the Supreme Court, but a year later, the Supreme Court said there was no further appeal. The High Court also told him to pay for the appeal.
Author: Derek Appleton
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