La culpa como presunción de causalidad en la responsabilidad del médico por incumplimiento de su deber de información al paciente

This paper analyses uncertain causation between the breach of the doctor’s duty of disclosure and patients’ harm, on the assumption that the latter is of an extra-pecuniary nature and affects the patient’s self-determination. The hypothesis is put forward that the fault constitutes the introduction of an impermissible risk that allows causation to be presumed. In order to support this hypothesis, firstly, fault is analyzed as a violation of the lex artis and the introduction of an impermissible risk of violation of the patient's self-determination; secondly, the mechanisms for establishing causation in omissions and analyzing the role of the objective imputation criteria of increased risk and the purpose of protection of the rule in the case; Finally, it is concluded that fault allows causation to be presumed between the omission of information and the extra-pecuniary damage to the patient's self-determination; against which the doctor can defend himself by proving that harm is not imputable to him if his conduct has not increased the risk.