Health Administration Responsibility: The loss of opportunity

When all the diagnostic tools available that could have guided the patient's diagnosis and determined its study and treatment have not been used, and the patient situation reaches an irreversible state, then we face the "loss of opportunity".

The loss of opportunity has been embraced in case law as an alternative to the breach of "lex artis", and  allows for a compensatory response in cases where the latter failure has not occurred, however it exists an unlawful damage arising from the operation of the service.

In this case we cannot ever know what would have been the end result, even if all available diagnostics possibilities had been exhausted .

In these cases, the material damage doesn't correspond to the fact occurred , but to the uncertainty surrounding the sequence that could have taken the facts should the medical service had followed other performance parameters, in short, the possibility that the circumstances concurrent had occurred in a different way.

The loss of opportunity is the loss of an alternative treatment, which resembles somewhat to the moral damage, and that is the concept to compensate.

We can state that medical action deprived the patient of certain expectations of healing, which should be compensated , but reducing the amount of compensation due to the probability that the loss occurred equally, having acted diligently. 

The immigrant child. Passport and the medical evidence of age determination.

The immigrant underage child with passport or equivalent document  cannot be discarded as minor of age and cannot be considered an undocumented alien so as to undergo additional tests to determine his age. A valid justification is required to oblige him to undergo such tests when he has a valid passport.

If in doubt about the document, a judgment of proportionality is to be made, and the reasons why it is considered that the document is not reliable are to be properly analysed prior to deciding to carry out the medical age determination tests.

In the case of both documented and undocumented persons, medical techniques for age determination, especially if they are invasive, may not be applied indiscriminately.

Any doubt about the minority of age based on mere physical appearance of the person shall be resolved in favour of the underage, given the fact that current techniques do not allow to establish with precision the age of an individual and also the existing debate on their accuracy.

According to the European Parliament resolution of 12 September 201 , an unaccompanied minor is primarily a child exposed to a potential hazard.

The protection of children, and not the immigration policies, should be the guiding principle for member States and the European Union in this subject, with respect to the higher interests of the child.

Both public authorities and private institutions should prioritize the interests of the child, which should prevail over any other consideration in all acts adopted in this area, as set out in legislation and case law.

The incongruity of the Court ruling. The omission.

The incongruity of the ruling is the mismatch between the judgment and the terms on which the parties made ​​their claims; granting more or less, or something different than requested.

The judgment must decide the disputes submitted by answering to all the claims made by the parties.

If you give more, less or something different to the request, the court incurs forms of inconsistency known as

·        Incongruity by omission

·        Extra petitum (award more than claimed)

·        Incongruity by error

The incongruity by omission, also known as incongruity “ex silentio” occurs when the court leaves unanswered some of the claims submitted to it by the parties, as long as it cannot be reasonably interpreted that the judgment includes a tacit dismissal of those “unanswered claims”, and the tacit dismissal can be deducted form the reasoning contained in the resolution.

The Fundamental Right to effective judicial protection is the value infringed when the judgment falls into incongruity.

It is not necessary that the judgment includes, an explicit and detailed response to all and each of the arguments adduced by the parties in support of their claim.  It may be omitted the answer to allegations regarded as non-substantial, or nonspecific.

The objective liability of the Administration

The basic element in determining liability of the Administration for damage or injury caused, is the direct causal link, which must also be immediate and exclusive.

 

The claims for compensation are dismissed when the fault of the victim interferes.

The objective liability requires imperatively the causal link between the actions of the Administration and the injurious or harmful outcome. The socialization of the risk (justification of the strict liability of the Administration) does not permit the extension of such liability to cover any event. The current system of strict liability of Public Administration does not convert the Administration into the Universal Insurer for all risks.

The objective liability does not require fault or negligence on the side of the Administration.

The link can be identified looking for the right or efficient cause that usually proves to determine the outcome, looking for an objective adequacy between act and the result. It is necessary to prove the suitability of the link to determine that event or outcome, considering all the circumstances.

There must be an objective match cause/effect between action and event (the plausible link) and then the condition reaches the category of adequate cause, efficient cause or proximate cause reason of the damage. Thus can be excluded both: the indifferent acts, the inadequate acts, and those absolutely extraordinary.

 The breaking of the causal link is reserved for Force Majeure/Act of God, the behaviour of the victim, or the serious neglect of it, provided they have been decisive in the result.

Fundamental Right to a legal sanction

It is Constitutional Court doctrine that the Fundamental Right to a legal sanction (art . 25.1 CE ) , in conjunction with the principle of legal certainty (art . 9.3 CE ) requires that when the Administration exercises sanctioning authority, the administrative final resolution that concludes proceedings must express, as part of their motivation, the identity of  the legal basis of the penalty - or at least implicitly -.  This identity should be certain and determined, so that a Court judging the case may not identify a different provision as the reason for the sanction.

It has to identify the infringement and its gradation with minimal reasonable clarity, and so it is to be identified also the relationship between the offense and penalty imposed. Always must be made reference to the provision applied effectively , which must have the coverage of a Law.

Transfer Tax value in case of Purchase & Mortgage Deed

The Tax Law allows the Administration consider the auction value agreed id the Mortgage Deed as the value of the asset for tax purposes. In this option the assessment is limited, and the Administration does not need to consider the appraised value of the property, and the expert doesn't need to visit the asset or explain the calculations.

The Administration may choose any of the means of assessment referred to in art 57 of the current LGT 58/2003 , including any other means determined by the Law of each tax ; although this choice does not relieve them from compliance with certain requirements so that such assessment is conducted properly.

With regards to excluding from the auction value the provisions for interest, costs or expenses of execution, this will be decided by  the law of the pertinent Autonomous Community.

The value of auction is the result of an expert appraisal. The Tax Payer can opt in its claim for it's own expert appraisal to contradict this procedure, and to determine the actual value of the property for tax purposes.



photo credit: <a href="https://www.flickr.com/photos/fabiotel/7687979198/">Fabio Téllez</a> via <a href="http://photopin.com">photopin</a> <a href="http://creativecommons.org/licenses/by-sa/2.0/">cc</a>

Heritage protection and Zone Planning capacity

In reviewing the Zoning Plans, the      Administration holds the right to alter  the previous list of protected buildings and landscapes -  Ius Variandi- .         Despite this, the initial assumption is    that the listed items will continue underthis category. 

The Administration needs justification should the protection be decreased to the extent that it can influence the effectiveness  of the conservation and protection of    the property listed. Relevant public interest must be the reason for this decrease of the protection, and  must be expressly explained in the document.

The Administration enjoys by Law the capacity of being                 discretional on the exercise of it's powers of planning.  Though       such a discretion doesn't mean freedom. The Administration is        subject to limits established by law on this subject. Their decision   is linked to the protective measures taken by the cultural heritage   administration.

The Supreme Court has already stated that listing heritage is a         regulated capacity. When dealing with the planning in reference to  listed elements the Administration must necessarily provide the       regulation that ensures the protection level suitable or appropriate   to protect those characteristics. 

Privacy at home from acoustics pollution

Privacy at home  from pollution , among others acoustics, is a Fundamental Right in the projection of the European Court of Human Rights and Spanish Courts.

We are therefore within the scope of Article 18 of the Spanish Constitution and although an interpretative relation to Article 45 can be established, it does not change the setting: the characteristic of a Fundamental Right, not absolute, of course, but equipped with all the guarantees, including the capacityto regulate  and to define patterns that determine their content in a collision with other.

As  defined by the Constitutional Court, one characteristic element is that the rules pertaining to these Fundamental Rights are to be interpreted in the most favorable way for them .

  

The Fundamental Right of Effective Judicial Protection can be exercised by means of the summary action of Article 53.2 of the Constitution. In such a case these rights cannot be reduced to the single task of collating the noise measurements offered by some devices. If this was the case, then  Articles 114 and following of Law Jurisdiction would redundant, and so would be the submission of these cases to the Courts.

The Land Registrar and your Deed of Purchase

Having your Deed of purchase completely registered is key to secure your rights as owner.

In the event that for any reason there is a delay in delivering the Deed into the Land Registrar, or in case that due to any defect the Deed is rejected by the Registrar - and the defect is not corrected within the term of validity of the formal presentation to the Registrar - then your rights are at risk.

One problem you may suffer is the property being embargoed by creditors to your vendor.

The embargos will be decreed normally by the Courts or the Local Councils. The Land Registrar will be obliged to register those embargoes as burdens on your property. When you eventually achieve the registration of your freehold, then you will have to request the creditors to waive the embargoes, and you may even have to take them to Court for this (an entry in this blog will comment this shortly).

Other problem that technically you may suffer is that your vendor sells the house again.

Of course this may be criminally prosecuted, though should the new purchaser be a "good faith purchaser", and should he achieve the Registration prior to you, then you may lose all your rights on the house, and just be left with the right to be compensated.