The coronavirus pandemic has led to an unprecedented health and economic crisis, with dire consequences. Many of the victims of this exceptional situation and of the Administration's measures are now considering taking legal action to obtain compensation. To clear up your doubts, we interviewed Juan Antonio Soriano, director of the Penal Area and director of Tomarial.
What possibilities does a victim of the pandemic have to demand compensation from the Administration in Spain?
It is not that you have the possibility of demanding compensation from the Administration, it is that you have the right to claim it. Public institutions have responsibility for the acts they carry out that may harm the citizen. The Administrations contract a responsibility for the malpractice in the management of the sanitary crisis or for generating costs in the administered that they do not have the duty to bear. It is the Patrimonial Responsibility of the Administration: The Government is subject to the Law, which it protects the citizen and the companies from those actions of the Administration that suppose an illicit damage for the administered, a damage that would not have why to support.
Do you consider that there is responsibility of the Administration in many cases?
Undoubtedly, we only have to review the multiple cases that we know from the media: what some have suffered directly from the management of the General State Administration and the other Public Administrations, each according to their different competences. We could highlight several groups, as the Patient Ombudsman did:
1) Elderly in residences: Cases in which the deceased have not received the required help and relief are liable to criminal complaint. The complaint could be filed for omission of the duty of relief, injuries or even reckless homicide, plus the corresponding civil compensation.
2) Victims of errors and negligence: Neglected or neglected patients are civilly claimable. For example, prematurely discharged patients, delayed surgical interventions or inadequate treatments that have led to a worsening of the disease, sequelae and damage to their health.
3) Protocol errors with Covid-19: those situations in which a person has died due to an erroneous diagnosis by Covid 19, due to lack of a respirator or due to not having been admitted to an Intensive Care Unit (ICU) are criminally reportable.
4) Poorly managed waiting list: Deaths caused by lack of a respirator or the person having not been transferred to the ICU are criminally reportable, not due to lack of resources, but due to poor management of the waiting list within the emergency room. Also included are cases in which treatment in a public center is not possible, and the patient has not been referred to a hospital (including the elderly in residences).
5) Patrimonial responsibility of the Administration: Those people who have suffered damage or harm to their person and / or property as a result of inadequate administrative management of the pandemic, have the right to sue the Government or the autonomous communities through contentious administrative proceedings. "The patrimonial claim against the Administration is based on the lack of initiative and the negligence of the Administration in not having acted preventively in the face of the warnings of the EU and the WHO"
6) Lack of worker protection: those workers, soldiers and officials who have suffered injuries or have died due to the manifest infringement of the Occupational Hazard Prevention Law, and in the absence of collective and individual organizational and protection measures. This situation would also occur when some sectors return to work.
7) Covid-19 claim as an accident at work: They would be claims against Social Security of the recognition of the disease as a work accident, in cases contracted during the provision of their daily work or in sectors such as civil servants and the military, with extensive exposure to the virus.
8) Denial of sick leave: It will be claimed when it occurs on patients with risk factors that have been harmed as a result of the denial.
9) Claims against funeral homes: for breach of contract and poor provision of services, when appropriate. For example, due to errors in the identification of the deceased or delays in the provision of benefits.
10) Lack of information: the lack of it will be claimable to patients or their families about diagnoses, alternative treatments and possible risks of those infected by COVID-19.
How should this claim be presented to the Administrations?
Each Administration has responsibility in the performance of its functions and according to its competences: the central, autonomous and municipal. It is necessary to study in each specific case to determine responsibility and also what is the best way, legally speaking, best to claim the damage suffered. In some cases, it will be criminal and in others civil or administrative, where the Administration's Property Liability fully enters. Claiming financial damages for closing a business is not the same as claiming for the death of a relative.
Is it better to hurry up and file lawsuits soon?
The rush is not good counselors. But it is good to heed the saying: slowly, but without pause. My recommendation is to start assessing the case now, collect the maximum information on each of the issues, study the viability of the claim, choose the most appropriate way to claim and, then yes, raise the corresponding claims. There is at least one year to file the claims, therefore you have to do things right: first study, information, assessment and decision-making, as it is the best way to sue with the maximum chances of success.
If each case has to be studied individually ... what should anyone who has doubts do?
It is always best to put yourself in the hands of a professional. In this situation, I think it is better to go not only to a lawyer, but to a multidisciplinary law firm. Because an office will be able to respond as a team to the different needs of each case, since there will not be two alike, and we have the ability to determine what will be the best course of action, be it civil, criminal or administrative. This implies having professional specialists in all these areas of Law, as in Tomarial: we have qualified professionals in each area and even a specific department for the Property Liability claims of the Administration.
In this case, do you advise against joint actions?
Yes, because experience tells me that joint claims, the “affected platforms” of different legal problems, have not always been the best solution because each issue is different, with different connotations and particular characteristics. I sincerely believe that claims must be studied, assessed and carried out individually to have a better chance of success.
