Publicación:
Incumplimiento de las sentencias por responsabilidad civil derivado del daño médico que ordenan al Estado un Pago Indemnizatorio
Incumplimiento de las sentencias por responsabilidad civil derivado del daño médico que ordenan al Estado un Pago Indemnizatorio
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Fecha
2018
Autores
Alca Gómez, Betty Silvia
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Universidad Nacional de San Agustín de Arequipa
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Abstracto
The general objective of this research work was to determine the normative causes that cause the failure to comply with the judgments derived from the medical damage in sanitary structures dependent on the Peruvian State, where the latter is ordered to pay an indemnity amount, when its responsibility was determined in the judicial processes. It was raised as a research problem those cases when the patient and / or family members in case of death of the victim, after prolonged legal proceedings obtain a favorable ruling ordering the State, the payment of compensation for medical damage, however, when it is intended to execute this judicial resolution, we find what is regulated in the contentiousadministrative procedure and other legal rules, which are often contradictory to each other. The importance of the research is that more than half of people are served in institutions of MINSA, ESSALUD and other health institutions of the public sector and another important factor that most people who attend these institutions are socio-economic C and D, that is, poor and of extreme poverty, of which there is a problem of social relevance. The approach of the general hypothesis has been: Given that various judgments issued by the Supreme Courts of Justice of Peru issued between the years 2014 - 2017, ordered the State to pay compensation for medical damage, the sample of which is attached to the present investigation it is probable that these judgments are not fulfilled by the Peruvian State. The hypothesis stated in the affirmative has been verified from the sample collected. That is why, through the present investigation, we hope to contribute with alternative solutions. Since the social scope in principle benefits patients and direct relatives if it were the case. The legal contributions will transcend positively in favor of those affected by receiving the payment for compensation in a fast, timely manner within a reasonable period of time as established in the European Charter of the Rights of Patients. To this end, repeal of subsection 2.1 of article 2 of Law No. 30137 has been proposed, a law that establishes prioritization criteria for the payment of judicial sentences. This subsection violates the right to equality and effective jurisdictional protection. that priority is given to the payment of those judicial mandates from Labor and Social Security Courts, relegating the payment of social debts due to medical negligence to the penultimate place on the scale. This also proposes regulations to 10 enforce judicial rulings, and that the payment derived from medical damages is made effective, by means of which a health fund is established for the responsibility of the health professional who intends to honor the social debt of those patients of solidary character, more nonprofit. In order to know this acceptance by the medical professional, surveys were conducted for 100 physicians from the city of Arequipa, although only 40 were absolved, and the Dean of the Medical College of Arequipa was interviewed in order to know his assessment of the conditions of the health sector and an opinion was collected from the Peruvian Medical Association and other associations that defend the rights of patients. Arriving to the general conclusion that our legislation regulates regulations that cause both the delay and the impediment to execute the judicial mandates derived from a medical damage in sanitary structures of the public sector as well as the lack of implementation of legal mechanisms that allow compliance when ordered to the Peruvian State, the payment of monetary sums for compensation. Prevention should be strengthened in the health sector as well as compensation in economic terms, as a result of the damage suffered since in many countries legislation has been legislated in such a way that the compensation system in favor of patients is strongly reinforced through of comparative legislation. Faced with this, it is necessary to establish solution proposals and that the study will inspire other researchers to continue with the problem of the present investigation.
Descripción
Agradezco a la Universidad Nacional de San Agustín de Arequipa, a CIENCIACTIVA y al Consejo Nacional de Ciencia, Tecnología e Innovación Tecnológica (CONCYTEC), quienes confiaron en el financiamiento para el desarrollo del presente trabajo de investigación.
Palabras clave
Servicios Públicos,
Responsabilidad Civil,
Sentencia Judicial,
Resoluciones Judiciales,
Daño Médico