La irrelevancia del consentimiento informado en los litigios de responsabilidad médica. Un análisis de la experiencia civil y estatal en Colombia
| Autor | Jorge Enrique Cely León |
| Cargo | Independent legal researcher. External lawyer, expert in State, Civil, Disciplinary, Administrative and Fiscal Liability, with a master's degree in Economic Law, Economic Regulation and Economic Analysis of Law |
| Páginas | 63-119 |
Cely, J. The irrelevance of informed consent in the medical liability lawsuit
63
Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
The irrelevance of informed consent in the
medical liability lawsuit. An analysis of the
civilian and state experience in Colombia
La irrelevancia del consentimiento informado en los
litigios de responsabilidad médica. Un análisis de la
experiencia civil y estatal en Colombia
Jorge Enrique Cely León
Independent legal researcher
City: Bogotá
Country: Colombia
Original article (analysis)
RFJ, No. 11, 2022, pp. 63 - 119, ISSN 2588-0837
ABSTRACT: This research provides a general review of medical
liability in the Colombian experience, specifically based on
the jurisprudence of the Civil Chamber of the Supreme Court
of Justice and the Third Section of the Council of State. All
the above, intend to raise a critique of the irrelevance of the
figure of informed consent in the liability trial, a matter that
reconsiders some of the basic assumptions for the emergence
of an indemnity obligation in the field of medical liability.
KEYWORDS: Medical liability, Civil Law, Administrative Law,
Informed Consent.
RESUMEN: Este artículo ofrece una revisión general de
la responsabilidad médica en la experiencia colombiana,
específicamente, a partir de la jurisprudencia de la Corte
Suprema de Justicia y del Consejo de Estado. Todo lo anterior,
para plantear una crítica a la irrelevancia de la figura del
consentimiento informado en el juicio de responsabilidad,
DOI 10.26807/rfj.vi11.367
Cely, J. The irrelevance of informed consent in the medical liability lawsuit
64
Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
cuestión que replantea algunos de los supuestos básicos para
el surgimiento de una obligación indemnizatoria en materia de
responsabilidad médica.
PALABRAS CLAVE: Responsabilidad Médica, Derecho Civil,
Derecho Administrativo, Consentimiento Informado.
JEL CODE: H75, I18.
“There is no light without shadow in the human being”.
Carl Gustav Jung
INTRODUCTION
Civil and State liability, with its different developments,
regimes, and applications, is one of the broadest areas within
the legal world, which is only natural, since determining why
and to what extent damage is attributable to a subject requires
a judicious and detailed argumentative content, which for each
case is accompanied by several particularities (Mazeaud, 1983).
In fact, within this area, several sub-areas have been formed,
including medical liability (Giraldo, 2018, pp. 37-53).
Medical liability is an issue of great relevance in legal
terms, provided that, to date, it has managed to capture the
attention of two jurisdictions: the civil and the contentious-
administrative. From there, several rulings have been
issued that postulate jurisprudential lines in procedural and
substantive aspects.
However, the experience of each of the jurisdictions
has not been uniform, since there are several nuances in
this respect, so much so that the Supreme Court of Justice
considers that medical civil liability is contractual in origin,
but the Council of State considers that the medical liability
Cely, J. The irrelevance of informed consent in the medical liability lawsuit
65
Revista Facultad de Jurisprudencia RFJ No.11(2) Junio 2022
of the State is non-contractual, matters that provide quite
different perspectives concerning the lawsuit that gives rise to
the indemnification obligation.
However, this is an issue that must be approached with
caution and attention, not only because the issues involved
are scattered in jurisprudence, laws, decrees, and resolutions,
but also because the profession of medicine and its practice is
related to the life and physical integrity of all persons who, at
any time, have required or will require health care services, be
they private or public.
Thus, the purpose of this journal article is to provide the
reader with a comparative analysis of the civil and administrative
experience in the field of medical liability, considering the most
important particularities that each of these offers. Now, given
that the complexity of the subject is considerable, we will first
deal with the medical-health activity as a case of civil and State
liability, and then make some criticisms about the irrelevance
of informed consent in the liability trial, a matter that questions
some of the fundamental assumptions of medical liability.
Before starting with the object of the journal article, it
is important to specify that the present work will start from
the assumption that the origin of a compensation obligation
comes from the proof of damage, imputation, and basis or
attribution factor. Where the first of these refers to the
affectation, patrimonial or extramatrimonial, suffered by a
subject. The second, imputation, is the relationship of causality,
factual or normative, that exists between the conduct of the
agent and the damage suffered by the victim. And finally,
the basis or attribution factor is the category that allows the
evaluation or qualification of the agent’s conduct, which can
be subjective or objective. The subjective factor consists of
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