Posted on: May 5th 2023


Ana Paula Maritano

The Constitutional Court of Colombia warned that the provision of informed consent by the patient is a transcendental element for the analysis of the configuration of medical liability, after studying the lawsuit filed by the relatives of a citizen who died in November 2013, after a surgery in which his gallbladder was removed (cholecystectomy).


The plaintiffs filed a claim for direct reparation against the Hospital Universitario San José de Popayán E.S.E., for them to be declared patrimonially liable for the damages caused by the failure to provide the medical service that caused the death of their relative.


In 2017, an administrative judge of Popayán ruled in favor of the claim, but in 2021 the Administrative Court of Cauca denied the claims, so the relatives appealed the decision, which was also denied by the Council of State.


The Second Chamber presided over by Judge Ibáñez Najar concluded that in this case the patient did not give informed consent that would have demonstrated that he was aware of the risks inherent to the surgery he underwent and, therefore, that he knew how to react to warning signs.


The Court has considered informed consent as a specific development of several fundamental rights, especially the one of personal autonomy.


"This is so, since consent is not that which is given in the abstract, but that which refers to the specific risks of each procedure; without the physician's manifestation in scientific and complex terms of the therapies or procedures that the patient must undergo being sufficient, but they must be made intelligible so that the patient knows above all the risks that the specific procedure implies and can thus express his will to undergo it".


In this case, the judges in the case based the acceptance of the informed consent on indirect evidence, meaning the transcription of the clinical history in which reference was made to the patient's acceptance.


However, they did not review the direct evidence, which was the document containing the informed consent. If they had reviewed this document, they would have realized that it was not signed by the patient as stated in the transcription of the medical history. If the Court had evaluated such evidence, it could have reached a different decision than the one adopted.


"The Chamber concluded that the Court incurred in a factual defect in that it failed to fully evaluate the evidence, which led it to consider a fact as proven despite the fact that the evidentiary material in the file showed the contrary. This unreasonable evaluation of the evidentiary material has a direct impact on the conclusion of the non-existence of the failure in the service, and therefore, implies the invalidity of the conclusion reached by the lower court judge", the sentence indicated.


Thus, the judgment of the Court left without effects the judgment of the Administrative Court of Cauca and ordered these court to issue a new decision, taking into account the arguments of the Constitutional Court in this decision.


Decision T-018-23


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