Insurance and Reinsurance

Medical Malpractice insurance in Argentina

The number of claims on the grounds of medical treatment has increased in recent years. In these situations, whether from the focus of the claimant or the health professional involved, it is important to take into account certain important aspects related to the liability of physicians and the coverage that may be taken out for such risks.


Best endeavor obligation

Obligations emerging from professional medical liability in Argentina are generally considered to be best endeavor obligations and therefore the professional cannot guarantee a particular result, but chooses the appropriate technique from amongst the treatments considered correct in accordance with the accepted scientific medical principles. For this reason, the means to reach a certain diagnosis must be stepped up, and it is necessary to do so within an appropriate time frame.

Nevertheless,  it should be noted that there are some exceptions to the general principle, such as the performance of plastic surgeons, whose obligations are considered to be result obligations.

            Informed consent

In this respect, it is necessary to highlight that Argentinean case law has resolved that health professionals must respect the will of the patient, that is, the consent of patient or their representatives must be required before carrying out a procedure, and must be given in writing for a dangerous operation. As it is the patient who must suffer the consequences and costs of a medical treatment, the professional must give full information on the risks entailed by the proposed treatment, the possible alternatives to the suggested treatment and the relative chances of success. 

Thus, under the doctrine of informed consent, the physician may be questioned on circumstances in which the trigger for negligence on his part was not so for much using an inadequate treatment but rather for acting without the consent of the patient—or going beyond the consent given, or not having informed the patient of the risks of a particular treatment.

            Burden of proof 

In the field of medicine, the principle of discretion should be foremost, as it is down to the physician to decide upon the best course of treatment out of the available treatments that suit the specificities of the case.

For this reason, the burden of proof falls on the claimant alleging the professional’s liability, even more so if the party claiming compensation bases its argument on the poor performance of the physician. 

In order to attribute professional liability to a physician, the relation of causality between the alleged transgression by the professional and the claimed injury must be proven.

However, and despite the general principle mentioned, there is case law which considers that, in order to determine professional negligence and the causal connection between the conduct of the physician and the injury, the burden of proof falls upon the professional, in view of the fact that the latter is better positioned to provide the means necessary to usefully prove his lack of negligence. 

            Insurance 

In Argentina, medical malpractice insurance is normally Claims Made, on the basis that insurers will provide an indemnity to the insured for the third party claim made within the time limits of the policy, including any extended periods agreed therein. 

Although medical malpractice insurance is not compulsory in Argentina, it has spread in recent years as a result of the increase in claims made against health professionals.


For further information on this topic please contact Martín G. Argañaraz Luque