| dc.description.abstract | The topic to be developed has a substantial importance in the sense that it is intended to seek options and/or mechanisms through which the Colombian state can be protected when convictions for strict liability in cases of nosocomial infections occur.
In the course of the present investigation, situations have been discovered that generate, to say the least, alarm, concern and, why not say it, pain in the homeland, since when unfortunate situations occur with detrimental consequences for some individuals, without it being possible to impute, without the slightest doubt, responsibility to anyone, there is a desperate search for compensation and indemnification of such damages by the state.
Unfortunately, due to many reasons ranging from negligence in the defenses, number of processes, lack of knowledge of the precise issues, lack of expertise of the defenders, etc, is that filing lawsuits against the Colombian state is very, very profitable, because although experience tells us that an administrative process can take several years, often results in favor of the plaintiffs, thus originating multimillion compensations, at the expense of the state, which make it worth the wait.
When we talk about nosocomial infections, this is no exception, because when a patient has the misfortune of catching one of these infections and suffers a damage to his integrity, or some kind of damage, he will always look for a responsible party, and when such liability is not directly attributable to the health service provider, it is generally the state who, through strict liability, is called upon to compensate such damages.
Throughout the present investigation, it has been seen with concern how the thesis of strict liability is increasingly gaining strength in the Council of State, and thus hold the Colombian state responsible when a patient is infected with an intra-hospital infection for which the hospital center cannot be held responsible due to service failure; This situation is worrying, since although it is true that it is scientifically proven that it is impossible to eradicate 100% of the germs and/or bacteria present in operating rooms and other health centers, bacteria and/or germs causing nosocomial infections, since it has been shown that the maximum rate of disinfection and asepsis does not exceed 80%, there will always be a risk of contagion of a patient.
It is considered of vital importance to seek to modify the thesis that within the Council of State has gained more and more strength, regarding the strict liability of the state in an unfortunate situation as described above, since when it is demonstrated that the hospital center that is providing the care or surgical service, has fully complied with the protocols of cleaning, disinfection and asepsis, established by the health authorities, and anyway there is a contagion of an intrahospital infection, we are faced with an irresistible situation, even if it was foreseeable, disinfection and asepsis, established by the health authorities, and anyway a contagion of an intrahospital infection occurs, we are faced with a situation of irresistible character, even if it was foreseeable, where a number of factors converge so that such contagion could occur, often personal aspects of the infected person; Thus, it could be said that in a situation such as the one immediately described, we are faced with a situation in which alea plays a fundamental role, so much so that not always all patients who have coincided in such moments have been infected with the same.
All of the above has a useful purpose, the beneficiary of which is the public treasury, in the sense that it is not possible to hold the Colombian state responsible for a situation that, although it may be foreseeable, is irresistible.
And it is well worth clarifying this last concept, because knowing that it is not scientifically possible to eradicate and eliminate 100% of the germs and/or bacteria present in health centers, which can cause nosocomial infections, we are facing a situation that can be foreseeable, and, based on the same statement of the impossibility of guaranteeing 100% effective asepsis, the same situation becomes irresistible.
CONCLUSION
Taking into account that in the last 15 years the number of sentences that have been produced by the Third Section of the Council of State does not exceed 8, and of those, 5 of them have resulted in millionaire sentences to be paid by the state, directly affecting the treasury, it is important to carefully analyze which has been the jurisprudential line adopted by this Court, and even more, to try to generate a change of the same and thus try that the applicable liability regime is the subjective one.
Within what we were able to analyze when carrying out the jurisprudential study of the sentences issued by the Council of State in the last 15 years, we found 5 sentences that condemn the State for close relation with nosocomial infections, but when analyzing them, it is evident that the procedure of the defendant medical centers was correct, and the contagion of the patients with these intrahospital infections was due to the alloa than to a neglect in the asepsis procedures of their facilities.
On the other hand, in the judgment of April 28, 2010, the third section of the council of state stated:
..Likewise, it was considered that in order to infer the liability of the State for the damage derived from its medical activity, it was necessary to prove all the elements of liability -the damage, the failure of service and the causal link between them- for which the judge had to be particularly meticulous and evaluate all the legally accepted evidentiary elements, among which evidence would be especially relevant, since it could be constructed from the evidence in the file and the conduct of the parties themselves. It was also specified that, on certain occasions, the rules of experience would be very useful, since certain harmful events -leaving a gauze or a scalpel inside the body of a patient- could only derive from conduct constituting a failure of service....
These precepts, which unfortunately, as far as nosocomial infections are concerned, are not applied in their entirety, since the 5 condemnatory sentences handed down by the Council of State through its Third Section, what is evident and reiterated, is that nosocomial infections cannot be attributed to service failures, for example, deficient asepsis measures of the centers providing health services, but on the contrary, what could be said colloquially, is that these health institutions, and therefore the Colombian state, are held responsible for not having anyone else to hold responsible.
The position taken by the Council of State in these cases is that although it has not developed a specific dogmatic applicable to cases arising from nosocomial infections in which there is no proven failure of service, it has outlined some initial guidelines to affirm, in line with the prevailing trend in comparative law, that these should be analyzed from an objective liability regime, which in our case would be the exceptional risk.
In relation to this legal title of imputation, the jurisprudence has pointed out that:
... derives its existence from the consideration according to which the legal entity that carries out an activity whose performance implies the risk of causing damage, must assume the liability derived from causing such damage in the event that it occurs or that, even when the activity does not involve real danger, it entails the assumption of the unfavorable consequences that its exercise may produce, by the person who benefits from such activity ...
Of the four types of risk accepted by the jurisprudence of the Council of State, namely: (i) risk - danger, (ii) risk - benefit, (iii) risk - conflict, and, (iv) risk - alea, the Chamber considers that the latter is the most appropriate to legally impute liability to the administration for damages derived from intra-hospital infections, taking into account that this category of risk takes into consideration the probability that "certain types of activities or procedures, may give rise, perhaps with the unavoidable mediation of chance or other types of unforeseeable factors, to the production of damages without any hint of guilt
However, the Court considers that there is no obstacle to extending the category of risk-risk to cases in which the damage is the consequence of an infection contracted in a health care center, since in all these situations the damage arises from the occurrence of a risk that is known by medical science, but that becomes irresistible since its occurrence often depends on the "inescapable mediation of chance".
In short, according to the criteria of the Council of State, risk can serve as a factor to legally attribute liability to the administration for the damages caused as a consequence of an intrahospital infection, understood as the one contracted by the patient in the hospital or health care center. In these events the liability is of an objective nature, so that the defendant, in order to be released from the obligation to compensate the damages, will have to prove that the patient already had the infectious condition before being admitted to the hospital.
This criterion and line of jurisprudence assumed by the Council of State, referring to the fact that nosocomial infections, despite being irresistible, are also foreseeable, has been the basis for issuing condemnatory judgments against health institutions and therefore against the Colombian State, which in our opinion is incongruent, since in all studies of state liability, irresistible events, as a general rule, do not engage the patrimonial liability of the administration because they can be qualified as "fortuitous cases", however, in the case of nosocomial infections, said corporation departs from this general rule, since they are not unrelated to the provision of health services.
For us, hospital infections, although foreseeable, are irresistible and constitute an inevitable event, since zero asepsis does not exist (according to studies carried out by the World Health Organization). Therefore, although we do not intend to transfer the risk to the patient, neither should the responsibility fall on the patient if he/she could acquire a hospital infection while receiving medical treatment, thus relieving the entity of responsibility.
In our opinion, in order for it to be viable to be held liable for nosocomial infections that a patient may contract in its facilities, it would be a sine qua non requirement to demonstrate the failure in the service originated by NOT strictly complying with the protocols of cleaning, disinfection and therefore asepsis that must be complied with in the institutions providing medical services, especially hospitalization, surgeries, invasive procedures, intensive care units, etc.
If the failure of the service described in the previous paragraph is not duly proven, in our opinion, it would not be possible to hold the health care center responsible for the nosocomial infection that a patient may acquire, since a whole series of variables are involved, from the type of organism the patient has, his immune system, his morbidities, etc., so that such nosocomial infection would be the product of alea, a fortuitous event, or in colloquial terms, simply bad luck, the patient's immune system, morbidities, etc., which is why such nosocomial infection would be the product of alea, a fortuitous event, or, to put it colloquially, plain and simple, bad luck, without such a situation being sufficient to hold the state responsible for it; in mundane criteria, and not at all legal, it would be like trying to hold the state responsible for a person being struck by lightning in the middle of a thunderstorm.
If our position were to be accepted by the Council of State and, based on it, the jurisprudential line maintained so far regarding nosocomial infections were to be changed, it would save millions of dollars in public funds, since the number of convictions in these matters would be ostensibly reduced and the State would avoid the obligation to pay millions of dollars in compensation. | |
