Andalusian health authority found liable for seven-month delay in patient's cancer diagnosis

The TSJA in Malaga upheld an appeal brought by the man's family against an earlier ruling that had rejected their claim for compensation.

The man repeatedly attended the emergency department at Malaga's Hospital Clínico Universitario Virgen de la Victoria with severe back pain between July 2016 and January 2017. However, doctors did not reach an accurate diagnosis.

He eventually sought treatment privately, where a CT scan detected a tumour and a subsequent biopsy confirmed that he had multiple myeloma. He died in January 2019.

The TSJA found that the delay amounted to a "loss of opportunity": a legal principle used in medical negligence cases where it cannot be established with certainty that earlier treatment would have prevented a patient's death, but the delay reduced their chances of a better outcome.

The court said the more than seven-month delay in diagnosing and treating the disease had reduced the patient's chances of recovery, longer survival and a better quality of life.

The SAS rejected the family's compensation claim on 27 March 2019, following the man's death on 26 January that year. The family then challenged the decision in the administrative courts, but their claim was initially dismissed by a Malaga court.

The TSJA has now overturned that ruling and ordered the SAS to pay the family 75,906.22 euros. The man's mother will receive 40,526 euros, while each of his children will receive 17,699.90 euros.

The family was represented by lawyer Damián Vázquez, who is part of the legal team of the patients' association and specialises in healthcare law and medical negligence.

Vázquez said the ruling applied the established legal doctrine of "loss of opportunity". Under this principle, he explained, it is not necessary to prove that an earlier diagnosis would certainly have prevented the patient's death. It is sufficient to show that the delay in treatment significantly reduced the chances of a better prognosis.

The principle is comparable to compensation for non-material damage and has been repeatedly recognised by Spain's Supreme Court in cases involving delayed cancer diagnoses, he said.

According to the family's medical expert, the pain was linked to a tumour in the left paravertebral area.

The man's repeated visits to the Clínico's emergency department resulted in a diagnosis of mechanical back pain, without doctors identifying its underlying cause.

The family argued that warning signs had been overlooked, including the change from mechanical to inflammatory pain. As a result, doctors failed to suspect that the patient might have a serious underlying condition.

According to the TSJA ruling, a lack of coordination within the emergency department eventually led the patient to seek private medical care.

He was examined by a trauma and orthopaedic specialist, who identified a possible underlying problem around the T7-T8 vertebrae.

A subsequent CT scan of the thoracic and lumbar spine revealed a soft-tissue mass next to the spine, with possible distant bone metastases. A biopsy then confirmed that the mass was a manifestation of multiple myeloma.

The family's appeal argued that the warning signs and the change in the nature of the patient's pain had not been properly assessed.

It also criticised the diagnostic tests carried out by the public health service. According to the family's medical expert, doctors had relied on a simple chest X-ray to investigate the patient's rib pain, rather than carrying out dedicated rib X-rays of the affected side or bilateral views.

The court's assessment of the patient's medical history concluded that an earlier diagnosis of the haematological cancer would have led to immediate radiotherapy and an assessment of the radicular syndrome and the resulting complications.

It also concluded that the patient would have received appropriate treatment sooner, potentially affecting the course of his illness and the consequences he suffered before his death.

The family argued that the healthcare he received fell short of normal clinical practice and established healthcare protocols.

Vázquez described the ruling as an important recognition of the family's suffering. "It is an emotional victory for the family, who have received the news with deep emotion and gratitude for the recognition of their suffering," he said.

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