The head of the Contentious-Administrative Court number 3 of Pamplona has condemned the Navarrese Health Service-Osasunbidea (SNS-O) to compensate a family with a total of 320,000 euros for an exchange of babies produced by mistake in 1993 in the Virgen del Camino Hospital in the capital of Navarra.
Twenty-two years later, in August 2015, it was proven that biologically the applicant was not her mother’s daughter. The other young woman exchanged after the birth, meanwhile, has refused to submit to the corresponding tests to clarify the facts.
In the sentence, which can be appealed before the Contentious-Administrative Chamber of the Superior Court of Justice of Navarra, the magistrate starts from an “objective and undeniable fact, that there is no biological affiliation” between the mother and daughter appellants in this procedure . The judge can only find one explanation: “The most real and probable hypothesis is that the exchange took place in the SNS-O”. And he emphasizes that the most real thing is that, having both babies born on the same day, the exchange took place in the hospital. “When the health personnel were the only one with access to the babies and when the error and the exchange could take place,” he emphasizes.
For the magistrate, “it would be contrary to the norms of human behavior for two babies to have been exchanged after their discharge from their 5th or 6th day of life and all this without their parents realizing that once they are discharged with their baby, the baby is not the same ”. “In other words, it is not a realistic hypothesis to deny responsibility for the error in the exchange of babies by the SNS-O, and to understand that their daughter was delivered correctly to parents and that her parents were not to recognize it and exchange it with another baby without realizing that it is not his daughter. And all this influences the burden of proof when assessing the responsibility claimed ”, argues the judge.
In their claim, the appellants asked the Navarre Health Service for a total compensation for the damages of 1,758,757 euros: 700,000 for the exchanged daughter, 350,000 for each of the parents and 175,000 for each of the two siblings, as well as 9,462 as reimbursement of expenses accrued for the damage suffered.
The SNS-O and its insurer, for their part, opposed the lawsuit. They rejected their responsibility and argued that the appellant “was correctly identified” at her birth with the method established at that time, which was that of the bracelet. And they maintained that there was a correct control of the babies’ weights and that there was a correct compliance with the security measures. And they concluded that “there is a lack of accreditation of the supposed exchange of babies by the health personnel of the hospital center”, for which they argued for the dismissal of the lawsuit.
However, the judge assures that the responsibility of the SNS-O stems from its own report, which stated that “health personnel were the only ones who could access all babies.” According to that opinion, “the mothers did not coincide in any room and only had access to their baby because they were not in common nests and in the boxes for exploration and performance of newborn techniques, the fathers and mothers could not enter without the supervision of the plant professionals because they had restricted access ”.
“It is illogical that the exchange took place outside the hospital”
And if all this were so, says the magistrate, the exchange of babies would not be understood, since it would be necessary to consider the hypothesis that the exchange occurred after the babies and their mothers were discharged. And this happened a few days after the birth, so for the judge “it is completely illogical” that the exchange had taken place outside the hospital.
For the magistrate, contrary to what is maintained by the SNS-O, if all the protocols supposedly carried out had been complied with, “the exchange would not have taken place.” The judge concludes that “there was an error” in the Navarrese Health Service that was discovered in August 2015. However, the magistrate considers the collaboration of the SNS-O in clarifying the facts and the possible collaboration of the other family involved, who nevertheless refused to submit to the corresponding tests.
Once the patrimonial responsibility for the exchange of babies has been declared, the judge argues the compensation awarded. It considers that the amount claimed by the appellants is “disproportionate” and maintains that the compensation must be based on the psychological and moral damage caused, in what in the legal sphere is called loss of opportunity.
To determine the amounts, the judge starts from the fact that the psychological and moral damages caused, which are accredited, have a specific date of origin, August 2015. Therefore, he considers it appropriate to set the following compensation: 200,000 euros for the woman who it was exchanged at birth; 50,000 for each of his parents and 10,000 for each of his two siblings.