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Expat Life

Medical malpractice: When it happens to an expat

By Sara Chaca

Ah, beautiful, dreamy, wonderful Ecuador!

Amidst all of the enchanted scenery, wildlife, mountains, beaches and rich Ecuadorian culture to write back home to friends and loved ones about, so as to whet their appetites when stating the words, “wish you were here.” But one might also ask him- or herself, what is to be done if “life happens” while making other plans in Ecuador, when one’s seemingly “amable” (the Spanish word for “friendly”) Ecuadorian Doctor or Clinic turns what was supposed to be a “routine medical procedure”, into instead a “terrible medical nightmare”?

As an Ecuadorian lawyer, I happen to be in that such unnerving catbird seat, wherein on a much more frequent basis than one might think could or should reasonably occur in Ecuador, I am informed of or learn of an otherwise well meaning but overly confident or unprofessional Ecuadorian doctor or clinic, whose lack (at times “scary lack”) of competence, resulted in either a failure to diagnose a medical condition, the surgical destruction of nerves/bone/cartilage, partial or total paralysis, and even death by virtue of prescription drug errors (or other such mistakes).

Naturally, an expat can’t prepare for everything that might come to pass in Ecuador, or which could threaten to rear its ugly head in their new life here in the northwestern corner of South America.  But, in response to such a medical challenge, as described above, an Expat can in fact do something to ameliorate the affects from such a grievance, if or when it happens, so as to aid the expat in achieving peace of mind, mental stability, physical support, and financial security for that expat’s future, in dealing with or trying to recover from any type of life changing and/or unwelcomed new medical affliction.

That is to say, if an Ecuadorian doctor or clinic, whether well-meaning or otherwise, causes medical trials and tribulations, you as the suffering expat do have options.

These options generally range from the conservative — simply requesting a formal apology from the doctor or clinic — up to requesting that they cover the medical costs for your recover, in part or in full.

Thankfully for expats, the new Ecuadorian “Codigo Organico General de Procesos para Dano Moral” (“General Organic Code of Processes for Moral Damage” in English) that went into law on May 23, 2016, dramatically simplifies and accelerates the time period necessary to receive a judge’s ruling on any justified “medical malpractice” case filed in Ecuador (expats included).  In fact, the time from starting the case, to the point of receiving the legal judgment can be less than six months in total, and without any need for the Expat to be able to speak, write or testify in Spanish.

In addition, this new beneficial law applies to expats universally, regardless of whether the expat currently lives in Ecuador, or has elected to return to their former home in another country. Proceeds from a judgment can be used in wherever the expat feels he or she will receive the best medical care. It is important to note, that the statute of limitations for filing a medical malpractice claim under the new law is four years from the date of occurrence of the claimed causative medical malpractice event (reference: Article 2235 of the Ecuadorian Civil Code).

In closing, it is truly my hope that by writing this article, expats will take it upon themselves to choose very carefully, their Ecuadorian doctors, dentists and clinics so they receive as close to the “American standard of care” in Ecuador as possible. As doctor/dentist to patient communication is key to obtaining a successful medical or dental outcome, it is in my experience very important to make sure that the staff at the medical clinic or dental clinic whom you entrust with your health, can ALL speak a reasonably communicative level of English, and that they do not brush aside any questions that you have about your own medical or dental situation, or as to any procedure(s) that you are electing to have performed by them.

And finally, if all else fails, expats as either residents or non-residents (including as Citizens too if/when applicable), still have all the same EXACT medical rights that any natural born Ecuadorian has, including to be able to protect themselves from harm (solely in English at that if needs be!). Naturally, this includes being able to recover against offenses to their own physical body and mind that are/were unacceptable or unprofessional, in comparison to the aforementioned “American standard of care”, which by the way, is also now these days reasonably expected by Ecuadorian nationals themselves, here in their own country of Ecuador.
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Sara Chaca is a Cuenca attorney who specializes in providing legal services to expats. She can be contacted at sara@ecuadorvisas.com or by phone at 099.296.2065.