Carrera, E.
The principle of comprehensive damage repair
109
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
The principle of comprehensive damage repair
and its problems in medical liability
El principio de reparación integral del daño y su
problemática en la responsabilidad médica
Eduardo German Carrera Perez
Independent legal researcher
City:
Quito
Country:
Ecuador
Original article (research)
RFJ, No. 12, 2022, pp. 109 - 128, ISSN 2588-0837
ABSTRACT:
This
paper studies the principle of integral
reparation and its problems in medical civil liability. For this
purpose, a brief examination is made from the doctrine of the
legal figure of the damage, both material and moral, in addition
to the liability in the medical field that can be perfected before
the non-observance of duties and obligations, as well as its
types. Comprehensive reparation is reviewed from its concept
and legal regulation in Ecuador provided for in the Constitution
of the Republic. Also to link theory and practice, a case study is
carried out within the results, which illustrates the application
of medical liability and integral reparation in the medical
context. All this through the use of a qualitative methodology,
based on the application of the documentary bibliographic
technique and methods such as inductive, legal exegetic, and
synthetic analytical.
KEYWORDS:
damages, physician, reparation, and civil liability.
RESUMEN:
Este artículo estudia el principio de reparación
integral y su problemática en la responsabilidad civil médica.
DOI 10.26807/rfj.vi.390
Carrera, E.
The principle of comprehensive damage repair
110
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
Para ello, se hace un breve examen desde la doctrina de la figura
jurídica del daño, tanto material como moral, además de la
responsabilidad en el ámbito médico que se puede perfeccionar
ante el incumplimiento de deberes y obligaciones, así como
sus tipos. Se revisa la reparación integral desde su concepto y
regulación legal en el Ecuador prevista en la Constitución de
la República. Asimismo, para vincular la teoría y la práctica, se
realiza un estudio de caso dentro de los resultados, que ilustra la
aplicación de la responsabilidad médica y la reparación integral
en el contexto médico. Todo ello mediante el uso de una
metodología cualitativa, basada en la aplicación de la técnica
bibliográfica documental y de métodos como el inductivo, el
exegético jurídico y el analítico sintético.
PALABRAS CLAVE:
daños, médico, reparación y
responsabilidad civil.
JEL CODE:
D23, B25.
INTRODUCTION
In the medical field, a series of events can take place
that triggers damages and lead to full reparation. To review
this principle and its problems, it is important to state that the
existence and determination of civil liability necessarily involve
the production of damage as a fundamental element that
distinguishes this type of liability from the others. Therefore,
according to López (2016) the occurrence of the damage gives
rise to the obligatory analysis of whether there is unlawfulness,
causality, and culpability because, without damage, there is no
liability whatsoever.
Carrera, E.
The principle of comprehensive damage repair
111
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
Damage is defined by Alessandri (2017) as that
impairment or damage suffered by a person, either to his
property or to himself. In the civil context, according to Barros
(2013) is the detriment, the affectation that a human being may
suffer as a result of an action or omission generated by another,
and that affects either his rights or interests. This makes it clear
that we are in the presence of this figure when the person is
affected by any type of loss, no matter how minimal it may be.
This can affect the person, according to Aguiar (2012) both in
the present and in the future, and it is perfected, provided that
it is susceptible to being repaired by any of the means, and it
must also comply with the requirement of being certain.
Furthermore, it is important to say that, among the
compensable damages, all those caused by the medical action
must necessarily be included, whether material, corporal,
including
pecuniary doloris
, i.e. the psychophysical damage that
these damages cause the victim to suffer, and moral damages,
which are those that affect the immaterial assets of the person,
essentially the rights to personality and that do not entail any
decrease in assets, of difficult valuation for this reason, but whose
compensability is nowadays unanimously accepted.
It should be noted that private damage is directly related
to Civil Law, responds to personal interests, and regulates
forms of compensation, which makes it different from damage,
treated in other areas of law, such as criminal law. For De Cupis,
the following elements must be present (2015) elements such
as a responsible party; the action or omission that generated
the damage; consequences that give rise to the affectation;
the presence of victims, and a legal rule that recognizes the
obligation to repair. In short, liability for damages requires the
existence of a link between the conduct of the liable party and
the damage.
Carrera, E.
The principle of comprehensive damage repair
112
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
The Ecuadorian Civil Code (2005) recognizes in Article
Art. 2214 concerning the damage that, whoever has committed
a crime or quasi-delict and consequently, has caused damage to
another, should compensate; regardless of the criminal sanction
imposed. Damage is considered to be the detriment suffered
by a person in his patrimony or his non-patrimonial assets. If
the damage is to the patrimony, according to Del Bruto (2018),
the damage refers to the material damage that can be emergent,
which impoverishes and impairs the patrimony or loss of profit,
which is directed to any impediment to obtaining profits. There
is also moral damage, which affects non-property, immaterial
assets, such as honor, morale, etc.
After knowing in a general way, the damage, it is
necessary to go into the study of the reparation, to expose
some issues associated with the civil liability of the physician,
starting from the fact that in Ecuador the Constitution of the
Republic, recognizes health as a right that must be guaranteed
by the State. In Ecuador, the Constitution of the Republic
(2008) recognizes health as a right that must be guaranteed
by the State, for this reason, the services of this nature must
have quality, effectiveness, and efficiency, among other
qualities. Also, under Article 54 of this text, it is provided that
any person or organization that provides public services will
be liable in the civil, criminal, and administrative order for the
deficient provision of this, as well as individuals, will assume
their responsibility in case of malpractice in the exercise of
their profession and especially that which may place at risk the
integrity or life of people.
Along these lines, medical liability is part of professional
responsibility, which, as Thompson (2011)
,
argues
is governed
by the principles of non-maleficence; utility; beneficence;
Carrera, E.
The principle of comprehensive damage repair
113
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
autonomy, and justice. On the other hand, Calabuig (2005)
conceptualizes responsibility as the obligation to respond to the
acts that have been committed and that have resulted in harm to
persons. Therefore, it means to correct, repair, or compensate
for that damage. He also indicates that this type of liability
leads to the fulfillment of the duty to correct or compensate
the damage caused by the physician in the performance of his
professional
practice.
Furthermore, Calabuig (2005) adds that medical
liability should be seen as the obligation of physicians to repair
and satisfy the consequences of acts, omissions, and voluntary
errors, even involuntary within certain limits, committed in the
exercise of their profession. This can be contractual or extra-
contractual in nature. The first is when the physician breaches
the contract that regulates the relationship with the patient
and the provision of the service. The second type occurs when
a person maliciously causes damage to another without the
existence of a contract and can occur due to inexperience,
negligence, and imprudence.
Because of the above, the opinion of Ordoñez (2005)
should be taken into account analyzes medical liability as to the
obligation that these professionals and health personnel have
to assume for the consequence of certain faults that may give
rise to civil and criminal actions. In addition, such liability of
the physician for his acts or omissions that may be guilty, for
reasons of error, imprudence, carelessness, poor execution of
operations, or others in which he participates as a physician.
In the field of civil liability, it is manifested in the obligation
to remedy the damage through compensation, which may be
medical or monetary.
Carrera, E.
The principle of comprehensive damage repair
114
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
It should be noted that, in the practice of medicine,
medical liability implies the obligation to cure and to respond
before the courts for any damage caused by negligence, linked to
a lack of technical knowledge. Also, imprudence saw by Bonnet
(2009) as facing a certain risk without having taken precautions
to prevent it and proceeding in haste without taking into account
the inconveniences that may result from such action. As well
as negligence, a matter incompatible with the duty that leads to
non-observance of the principles of the profession.
Regarding malpractice, Lascariz (2015) considers
malpractice that it is an inadequate treatment, which presents
errors or is negligent whose result causes certain damage,
unnecessary suffering, or the death of the patient due to
ignorance, negligence, lack of skill, or non-compliance with the
rules. Currently, according to this author, a medical practice is
considered correct if it is medically proven, therefore, it must
comply with the requirement of the
lex artis
and the patient
must have been informed according to the legislation in force.
However, in a professional liability claim, it is not only the
result that must be evaluated but also each of the steps taken in
medical practice.
In that order, the
lex artis
is for Molina (2008) a
standard of normality of the medical professional’s conduct
in liability, it is, therefore, the criterion for determining the
criminal infringement of objectively due care and is a necessary
element for assessing tort liability, it also contains the rules and
guidelines for the practice of medicine, they are medical and
technical standards of mandatory compliance and reflect the
physician’s conduct. They are guidelines that govern the correct
conduct of the physician before the patient, within a certain
situation and clinical condition, following the latest advances
in medicine.
Carrera, E.
The principle of comprehensive damage repair
115
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
The foregoing leads to the fact that, when a person or a
health professional incurs liability, particularly medical liability,
full reparation is required as an elementary principle within
civil law. Rousset (2011) considers that reparation constitutes a
premise that the obligations of both respect and guarantees will
be reestablished to erase or at least mitigate the damage caused
and prevent its repetition. Botero (2017) argues that human
dignity is the legal basis of liability since the person is the basic
element of the right to damages and the latter constitutes a tool
to repair the victim through restitutio
in integrum of the
harm
suffered.
It should be stated that comprehensive reparation,
as its name indicates, is comprehensive because it includes
violations of constitutional rights such as the right to health. It
seeks to remedy, as far as possible, the actual results caused by
the violation of a right. Article 18 of the Constitution (2008)
provides that it encompasses damages, both material and
immaterial, and its objective is to restore the person to the state
before the violation. Reparation includes restitution of the right;
compensation, whether pecuniary or economic; rehabilitation
as well as satisfaction and guarantees of non-repetition. It
also includes the obligation for the fact to be investigated and
punished, measures of recognition, apologies in the public
sphere, and the provision of public services and health care.
Along these lines, the aforementioned constitutional
precept provides that the material damage is repaired through
compensation for the loss or impairment of the victims’ income,
the expenses incurred, and any other pecuniary consequence
related to the events that occurred.
Carrera, E.
The principle of comprehensive damage repair
116
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
On the other hand, the reparation of non-pecuniary
damage includes compensation, through the payment of an
amount of money or the delivery of quantifiable goods or
services due to the suffering and affliction of the affected and
their relatives, the affectation of very relevant values for the
individuals as well as the alterations, of a non-pecuniary type,
that affect the form of existence of the person who suffered
the affectation and his family context. The reparation must be
made according to the violation, the circumstances that took
place in the case, the results of the facts, and the impairment to
the life project, this issue is affected, in many cases, because of
the performance in the medical field.
For this reason, within the principle of integral
reparation, the role of the jurisdictional organs is highlighted,
considering that in the judicial disposition issued or in the
reparation agreement the obligations to be fulfilled by the
person responsible for the damage must be clear and ensure
that the decision is executed so that the integral reparation
materializes.
According to Domínguez (2010), the principle of
integral reparation means that the measure of reparation must
be proportional to the damage caused. Therefore, only the
damage is subject to compensation as part of the civil liability.
To this end, the principle of full reparation includes the
evaluation of the damage. The victim must be compensated for
what he has suffered.
It should be noted that the principle of full reparation
is a good attempt to protect the affected party. However, it
is complex in the face of damages suffered by assets that are
impossible to value, this can happen because they are suitable
Carrera, E.
The principle of comprehensive damage repair
117
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
for legal treatment and cannot be replaced because they are
damages whose nature does not admit an objective evaluation.
An example of this is those caused to personal, corporal, and
moral goods, which do not have an approximate value and
therefore cannot be compensated in their totality, so that the
compensation cannot be valued mathematically, therefore, its
reparation is far from the intended integrality.
1. METODOLOGÍCAL GUIDELINES AND THOUGHTS
To develop the research, a qualitative study is applied,
which according to Hernandez, Fernandez and Baptista (2006)
is based on logic and links several fields and specialties such as
medical, civil, and constitutional. The research of this approach
is characterized by its richness, it is deep and the information
that is used is of high quality. It goes from the general to the
particular, taking into account that it compiles doctrinal and
legal criteria on integral reparation and its problems in the
medical context.
The qualitative study allows to understand the
dimension of the phenomenon, the interpretation and
understanding in the practical order For Croda and Abad
(2016) at the legal level, this kind of methodology, consolidates
the results because it allows contrasting doctrine, regulations,
and jurisprudence. This generates an opinion, interpretation,
and perception about study.
On the other hand, the research is descriptive
and analytical, because it studies the peculiarities of the
phenomenon, specifically issues such as damage, medical
liability, and integral reparation from their definitions, to
know them and arrive at conclusions that contribute to the
Carrera, E.
The principle of comprehensive damage repair
118
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
legal field. For Hernández, Fernández, and Baptista (2006) the
methodology from a descriptive approach specifies definitions
and particularities of the subject of study.
The bibliographic-documentary technique is also
used in the research, since for the development of the topic,
doctrinal foundations found in books, journal articles, research,
and essays, among others, were used. These contributed to the
theoretical support and deepened the topic of study.
Likewise, the analytical-synthetic method was applied,
which as Pastrana (2006) explains allows disintegrating the
object of study into its main parts and revising it from the
essential to reviewing it integrally. The result is the generation
of new knowledge on the subject studied. From this method, the
phenomenon is studied exhaustively and complemented with
the synthetic activity, in such a way that both actions: analysis,
and synthesis determine causes, to find the explanation and
arrive at conclusions.
The inductive method is another of those applied in the
research, through which integral reparation and its problems
in the field of the physician’s liability are reviewed, which
made it possible to define particularities and legal regulation,
reason, and reach conclusions. On the legal level, according to
De la Puente (2005), the criteria of the doctrine, the legislator,
and the norms are considered, which generates the inductive
type of process from the criterion that the legal norm is not
independent, it is part of the legal system.
On the other hand, the legal exegetical method was used,
through which the norms are exhaustively reviewed utilizing a
detailed, literal examination of each article, applicable to the
subject among them, the constitutional norm. De Bartolomé
Carrera, E.
The principle of comprehensive damage repair
119
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
(2014) leads to casuist, which makes it possible to consider the
cases that may arise in a certain area of law.
In this line, to link the theory exposed in the introduction
with practice, a case study is carried out, which according to
Martínez (2016) constitutes a fundamental strategy of scientific
research because it places the study in unique situations and
which different methods are combined to collect and reason
the information in a way that allows describing and verifying
the doctrine. This gives objectivity, validity, and effectiveness
to the results. To review the research topic, Case 0158-2014
will be reviewed, which resulted in Ruling No. 0103-2015 of
Temporary Chamber of Civil and Commercial of the National
Court of Justice concerning medical liability and integral
reparation.
2. LINKS BETWEEN THE PRINCIPLE OF FULL REPARATION
AND MEDICAL LIABILITY
To link the doctrinal review conducted about the
principle of full reparation and medical liability, it is essential to
study Case 0158-2014, which led to the issuance of Ruling No.
0103-2015 of the Temporary Civil and Commercial Chamber of
the National Court of Justice of Ecuador (2015), which brings
to light the variables studied.
We must begin by stating the background of the case.
The case goes back to an ordinary lawsuit for moral damages
against Dr. A in which an appeal was filed to challenge the
decision of the Second Civil, Commercial, Tenancy, and
Residual Matters Chamber of the Provincial Court of Justice of
Guayas, which accepted the appeal and revoked the judgment
in the lower court and dismissed the lawsuit.
Carrera, E.
The principle of comprehensive damage repair
120
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
The facts are supported as stated in the judgment. The
plaintiff intends to demonstrate that Doctor A, generated
down
syndrome and the death of her son, and for this reason, the
doctor must be held responsible for the moral damage caused
by not detecting that the baby, since gestation, suffered from
the said syndrome, as well as for hiding the fact that he had
a cytomegalovirus infection. This matter is since the treating
physician failed to comply with his duty to adequately inform
the patient of his illnesses or conditions. The plaintiff’s claim
is for an indemnity in the amount of one million United States
Dollars for moral damages.
The Chamber (2015) analyzed that the legal bond
between the physician and the patient must adhere to the
regulations to ensure the rights of the parties, under a
relationship, in this case, contractual, which obliges the physician
to provide his services and in which information and consent
must prevail, together with the skill, knowledge, and ability of
the physician. Likewise, medical liability is based on the
lex
artis,
which entails compliance with the duties and obligations
that govern the actions of the physician, among which are: to
provide dignified care, without discrimination, under reliability,
to comply with the patient’s right to information and to make
his own decisions.
It is stated in the sentence that the patient must be
informed of his diagnosis, treatment, and prognosis. In the
event of not communicating his medical situation directly, a
person representing him must be informed so that he can give
his informed consent to undergo a procedure or treatment,
except in the case of emergencies.
On the other hand, it was reasoned by the judge. The
judge reasoned that malpractice is manifested when there is
Carrera, E.
The principle of comprehensive damage repair
121
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
deliberate negligence and ignorance, which did not occur in
this case, since the death of the child did not occur, nor
down
syndrome or by cytomegalovirus. In addition, the detection
of these diseases can be prenatal, however, the tests only
reflect probability and not an accurate diagnosis, therefore this
situation is not attributable to the physician.
Likewise, the Chamber (2015) analyzed the contractual
liability of the physician, which must meet the following
requirements: the existence of a valid contract between the
parties; that this link leads to an obligation; that the obligated
party does not comply with the obligation in a fraudulent or
culpable manner; that, in turn, the claimant is not in default
with its obligations and that as a result of the breach, real
damage has been caused. In this case, the player considers that
there is a valid contractual link between doctor and patient that
generates between them the obligation to inform and grant
freedom to the person being treated to choose the treatment.
Therefore, the fact of not informing the patient of her condition
perfects a culpable omission.
The damage caused, according to the judgment was
caused to the mother, not to the deceased child. The mother
suffered emotional damage caused by suffering and moral
damage, both caused by the lack of information. The Court
(2015) considered it proven that the doctor knew that the
fetus suffered from cytomegalovirus. However, he did not
inform the patient and mother of the child, therefore, there is
a contractual liability, as he breached the duty of information,
which prevented the child’s mother from obtaining new
treatments or preparing for the possible consequences of the
disease when her child was born. Moreover, it is stated that “the
transgression of the doctor’s duty to inform the patient about
Carrera, E.
The principle of comprehensive damage repair
122
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
the disease is the cause of her suffering when she found out
about the problem months later when she could no longer do
anything about it” (Court, 2015, p. 8).
Also, the Court’s judge (2015) affirms that the non-
observance of a contract between doctor and patient produces
moral damages and that it must be quantified given the
affectation of the mother due to the suffered sufferings. He
adds that, concerning the relationship between the baby and
the doctor, it can be assessed whether there is tort liability,
a question that the mother may request, as she is entitled to
represent the deceased child. However, this does not proceed,
as there is no causal link between the act and the damage
produced, since the child does not die from the syndrome, nor
the aforementioned virus.
Finally, the fact imputable to the doctor in the court
decision (Court, 2015). The fact that he did not inform the
pregnant mother that she suffered from cytomegalovirus, a
condition that could affect the fetus, and that the fetus had
Down
syndrome. The child died within a short time after birth, not
from any of these causes, but pulmonary failure. In summary,
the doctor did not harm the child, but there is a medical liability
for lack of information to the mother and patient.
It is stated in the sentence concerning the amount of
compensation, that the economic capacity of the doctor was not
demonstrated and that unrealistic amounts cannot be requested
for this concept. Therefore, making use of the judge’s power to
determine the value of the compensation, under article 2232
of the Civil Code (2005), it is not appropriate to sentence the
doctor to pay the sum of one million dollars, requested by
the plaintiff, but to an amount that responds to her economic
situation. However, the economic situation of the affected
Carrera, E.
The principle of comprehensive damage repair
123
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
party was considered, for whom it is difficult for any economic
amount to compensate for her loss. The Chamber (2015)
decided to accept the claim and ordered as part of the full
reparation that the doctor must pay to the plaintiff, the amount
of twenty-five thousand United States dollars as compensation
for moral damages.
3. CASE STUDY AND CENTRAL IDEAS
The sentence under study brings to light how medical
liability manifests itself, the consequence of which leads to
full compensation for damages, whether material or moral.
This matter is in line with the analysis of the doctrine made
by authors such as Calabuig (2005) and Ordoñez (2005) who
coincidentally state that liability entails the obligation to
respond for the acts performed, specifically in the case seen
above. From the medical point of view, the failure to inform the
patient-generated damage, which as such produces the effect of
full reparation.
Indisputably, in this case, the figure of the damage
is present, which as Alessandri (2017) indicates generates
damage to the person, in this case to himself and not to
his material goods. In addition, the judges in their decision
recognize moral damage, an issue that is theoretically
supported according to the criteria of De Cupis (2015) and
Barros (2013). Here, an immaterial good of human beings
is injured through affliction, suffering, depression; in short,
emotionally, causing an affectation to the rights of personality.
Consequently, these are compensable, which is the reason
why full reparation is appropriate in this case.
On the other hand, the requirements of this figure
identified by De Cupis (2015) are present in the harm caused
Carrera, E.
The principle of comprehensive damage repair
124
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
to the victim and which are manifested in the existence of a
responsible party, in this case, the physician. As well as the
presence of an action or omission, in the case study, the doctor
did not duly inform the patient about the health situation,
so there is an omission of his duties and obligations, which
produced the damage. The plaintiff has also been identified
as a victim and legally there is a legal rule that requires the
obligation to make reparations, in this case, the Ecuadorian
Constitution (2008) in Article 18 and the Civil Code in Article
2214, which supports the application in the case, the integral
reparation.
The applies to the medical field as seen in the case
study and consequently as analyzed by Thompson
(2011),
Lascariz (2015), and Molina (2008) referring to the
lex
artis
that was breached and caused the damage generated
in the medical context. Therefore, the damage caused in the
performance of his professional
practice
must be repaired or
compensated.
Given the above, the judicial case is an example of the
need for compliance in the medical context with the duties
and obligations foreseen for this activity in the practice of the
profession and the doctor-patient relationship.
Likewise, the case, exposes in the practical order, the
requirements that medical liability must meet to be perfected,
both in the contractual and extra-contractual order from the
doctrinal criteria of Calabuig (2005) and Molina (2008).
The judicial process studied also brings to light the
importance of integral reparation, which from the analyses of
Rousset (2011) and Botero (2017) is a premise that allows the
reestablishment of obligations. In this way, the damage caused
Carrera, E.
The principle of comprehensive damage repair
125
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
is mitigated and, in turn, avoids its repetition. These issues have
a direct bearing on the respect for the person as a legal element
of liability since it is precisely the human being, in this case, the
plaintiff, who is the central element of the right to damages and
consequently is the holder of restitutio
in integrum
.
Similarly, the full reparation ordered by the judges in
the case is proportional to the breach of the duty to inform that
the physician must observe his actions. This operates in line
with the doctrinal postulates of Domínguez (2010) based on the
fact that the reparation must correspond to the damage caused.
The ruling outlined in the judgment under study determined
the obligation to be fulfilled by the person responsible for the
damage as a way of making full reparation effective.
CONCLUSIONS
The conclusions drawn from the study are that the
damage is the essential basis of medical civil liability and
produces as consequences the integral reparation that can be
manifested through indemnification, restitution of a right,
compensation, rehabilitation, as well as satisfaction and
guarantees of non-repetition, provision of public services and
health care.
The principle of integral reparation is an essential tool
within a Constitutional State of Rights such as the Ecuadorian
one because it intends to place the person in the state before
the violation of a right, a matter that in the medical field is
often impossible due to the good that is affected, which is the
life, integrity, and health of the person, however, it is a way to
satisfy the affected person directly or his relatives.
Carrera, E.
The principle of comprehensive damage repair
126
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
It was demonstrated through case studies that medical
liability is comprehensive and must comply with certain
requirements to be perfected, both in the contractual and extra-
contractual order. This requires the physician to act by the law
to adequately protect the rights to life, personal integrity, and
health that may be affected by the non-observance of duties
and obligations in the medical context. Likewise, there is
concordance between the decision adopted by the jurisdictional
body with the doctrine studied, regarding the damage, the civil
liability of the physician, and the figure of full reparation.
REFERENCES
Aguiar, H. (2012).
Facts and Legal Acts
, 4th edition
.
Buenos
Aires: Tipográfica Editora.
Alessandri, A. (2017).
De la Responsabilidad Extra-contractual
en el Derecho Civil Chileno,
3rd edition
.
Santiago de
Chile: Editores Ltda.
Barros, E. (2013).
Tratado de la responsabilidad extracontractual
.
Santiago de Chile: Jurídica de Chile.
Bonnet, P. (2009).
Lecciones de medicina legal.
Buenos Aires:
Abeledo Perrot.
Botero, G. (2017).
The Constitutionalization of Tort Law.
Bogotá:
Temis S.A.
Calabuig, G. (2005).
Medical liability: Legal medicine and
toxicology,
6th edition. Barcelona: Masson.
Constituent Assembly. (2008).
Constitution of the Republic.
R.
O. 449 of October 20, 2008.
Croda, J. R. and Abad, E. (2016). Qualitative and quantitative
research models and their application in the study of
law.
Universita Ciencia Journal,
4 (12),
pp.
13-24.
Carrera, E.
The principle of comprehensive damage repair
127
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
De Bartolomé, J. (2014).
Como estudiar Derecho.
Madrid: Tirant
Lo Blanch.
De Cupis, A. (2015).
Damages.
Barcelona: Bosch.
De la Puente, J. (2005).
The inductive method and legal
interpretation.
Revista PUCP
, pp. 3-9.
Del Bruto, O. (2018). Requirements for civil liability for medical
malpractice to proceed.
Ecuadorian journal of neurology,
27 (2), pp. 6-13.
Domínguez, R. (2010). The limits to the principle of full
reparation.
Revista Chilena de Derecho Privado,
III (15),
pp. 9-28.
Hernández, R., Fernández, C. and Baptista, P. (2006).
Research
Methodology.
Mexico D.F: Mc Graw Hill.
Lascariz, G. (2015). Malpractice. Responsibility of the
professional in medicine.
Revista Medicina Legal,
3 (2),
pp. 21-37.
López, E. (2016).
Manual de Responsabilidad Civil,
2nd edition
.
Buenos Aires: Abeledo Perrot S.A.
Martínez, P. (2016). The case study method: methodological
strategy of scientific research.
Pensamiento y Gestión,
I
(20), pp. 165-193.
Molina, C. M. (2008).
Criminal liability in the exercise of medical
activity.
Medellín: Dike.
National Congress. (2005).
Civil Code.
R. O. of 2005.
National Court of Justice of Ecuador. (August 7, 2015)
Ruling
No. 0103-2015, 0158-2014
(Temporary Civil and
Commercial Chamber of the National Court of Justice
of Ecuador).
Carrera, E.
The principle of comprehensive damage repair
128
Revista Facultad de Jurisprudencia RFJ No.12 Diciembre 2022
Ordóñez, M. A. (2005).
Ordoñez quotes Andres Ycaza Palacios
on medical liability in Ecuador.
Retrieved from: https://
www.derechoecuador.com/la-responsabilidad-
medica-en-el-ecuador
Pastrana, E. (2006).
Apuntes tomados del Seminario sobre
Epistemologia y Postmodernidad en las Ciencias Sociales.
Santiago de Compostela: USC.
Rousset, A. (2011). The concept of integral reparation in the
jurisprudence of the Inter-American Court of Human
Rights.
International Journal of Human Rights,
1 (1), pp.
59-78.
Thompson, J. (2011).
The principles of biomedical ethics.
Madrid:
Unaed.
Received:
17/03/2021
Approved:
29/06/2022
Eduardo German Carrera Perez:
Lawyer and independent
legal researcher
Email:
ab.eduardocarrera@hotmail.com
City:
Quito
Country:
Ecuador
ORCID:
https://orcid.org/0000-0003-3390-1764