Navigating Medical Malpractice Claims in Ecuador: A Guide for Expats

The Ecuadorian legal system provides robust avenues for recourse when healthcare professionals or institutions fail to meet the established standard of care, causing harm. However, success hinges on a precise understanding of the legal framework, evidence requirements, and critical procedural steps.

The Legal Framework for Medical Malpractice in Ecuador

In Ecuador, medical malpractice is not just a general concept; it is defined and governed by specific statutes. It involves proving that a healthcare provider’s act or omission deviated from the accepted standards of their profession (lex artis) and directly caused injury or death.

A successful claim must rigorously establish four key elements:

Duty of Care (La Obligación Preexistente): A formal doctor-patient relationship existed, creating a legal duty.
Breach of Duty (Infracción al Deber Objetivo de Cuidado): The provider’s conduct fell below the standard of a prudent, diligent professional in the same specialty and circumstances.
Causation (Nexo Causal): A direct, unbroken link exists between the provider's breach of duty and the patient's injury. This is often the most contentious element to prove.
Damages (Daño): The patient suffered quantifiable harm, which can include physical, psychological, and financial losses.

Legal recourse for medical malpractice in Ecuador can proceed down two distinct paths: civil and criminal.

Civil Action (Vía Civil): This is the most common route, aimed at securing financial compensation for damages. The primary governing law is the Código Civil, which allows for claims covering:
- Daño Emergente: All direct costs, such as corrective medical bills, rehabilitation, and medication.
- Lucro Cesante: Lost income or future earning capacity resulting from the injury.
- Daño Moral: Compensation for pain, suffering, and emotional distress, which a judge determines based on the severity of the harm.
Criminal Action (Vía Penal): In cases of gross negligence resulting in serious injury or death, a criminal complaint can be filed. This is governed by the Código Orgánico Integral Penal (COIP). For example, Artículo 146 of the COIP defines homicide caused by a breach of professional duty (homicidio culposo por mala práctica profesional), carrying potential penalties of imprisonment for the practitioner and revocation of their professional license.

Critical First Steps & Common Expat Pitfalls

Time is of the essence. Delay and procedural missteps can fatally weaken an otherwise strong case. Expats must be particularly wary of the following:

1. Securing Your Complete Medical File (Historia Clínica)

This is your most critical piece of evidence. Under Artículo 7 of the Ley Orgánica de Salud, every patient has the right to a complete, legible copy of their medical records.

Hospitals and clinics can be slow or resistant to releasing records. Do not make a simple verbal request. The most effective method is to have your attorney submit a formal, notarized letter (solicitud notariada) demanding the release of the complete historia clínica. Legally, they must comply. Failure to do so can be used against them in court.

2. Understanding the Statute of Limitations (Prescripción)

Ecuadorian law sets strict deadlines for filing claims. While the specific timeframe can vary depending on the nature of the claim (contractual vs. extra-contractual), waiting too long will extinguish your right to sue. Consult an attorney immediately to determine the precise deadline applicable to your case.

3. The Power of Attorney Misstep

A common, disastrous mistake expats make is starting a legal process and then traveling internationally with only a general power of attorney. For litigation, you must grant your lawyer a Poder Especial (Special Power of Attorney). This document, which must be correctly drafted and either notarized in Ecuador or apostilled from abroad, must explicitly grant your attorney the power to represent you in mediations and court hearings (audiencias), settle the case, and receive funds on your behalf. Without it, your case will stall.

The Legal Process: A Step-by-Step Guide

Step 1: Consultation with Specialized Legal Counsel Do not attempt this alone. Seek an attorney who specializes in personal injury and malpractice litigation and who has a proven track record. They will provide an initial assessment of your case's viability.

Step 2: Engagement of a Medical Expert (Perito Médico) Your lawyer's opinion is not enough; you need a qualified medical expert. Your attorney will engage an independent, court-certified specialist in the relevant field to conduct a thorough review of your medical records.

This expert will produce a foundational document called an informe pericial (expert report). This report is not just a summary; it's a technical legal analysis that establishes the standard of care, identifies the breach, and links it directly to your injuries. Be prepared for the cost: a comprehensive informe pericial can range from $800 to over $2,500 USD, depending on the case's complexity. It is an essential, non-negotiable investment.

Step 3: Mandatory Mediation (Mediación) Before a civil lawsuit can proceed to trial, Ecuadorian law often requires a mandatory attempt at mediation.

This is not an informal chat. It is a formal proceeding held at a government-certified Centro de Mediación, often one affiliated with the local Consejo de la Judicatura. The goal is to reach a legally binding settlement agreement (Acta de Mediación). If mediation fails, the center issues a certificate (Acta de Imposibilidad de Mediación), which is a prerequisite for filing the lawsuit.

Step 4: Filing the Lawsuit (Demanda) If mediation fails, your attorney will file a formal demanda in the appropriate civil court unit (Unidad Judicial Civil). This comprehensive document, filed through the official e-SATJE judicial system, will lay out the facts, the legal arguments referencing the Código Civil and relevant laws, the expert report, and a specific monetary claim for damages.

Step 5: Litigation and Trial (Juicio) The defendant(s) will be served and must file a formal response (contestación a la demanda). The process then moves through discovery and pre-trial hearings to a final trial where evidence is presented, and witnesses (including the medical experts) testify before a judge, who will ultimately issue a sentence.

Legal Checklist for Cuenca Expats

[ ] Immediately Request Your Historia Clínica: Use a formal, notarized request.
[ ] Create a Detailed Timeline: Document every conversation, symptom, and expense from the moment the suspected negligence occurred.
[ ] Secure a Poder Especial: If you plan to travel, ensure your attorney has the correct special power of attorney.
[ ] Consult a Specialist Attorney: Do not use a generalist lawyer. Ask for their specific experience with mala praxis cases.
[ ] Budget for the Informe Pericial: Understand that the expert medical report is a significant but mandatory upfront cost.
[ ] Preserve All Receipts: Keep meticulous records of all related costs—medical, travel, lost work—as these form the basis of your daño emergente and lucro cesante claims.

⚠️ Legal Alert: When to Act Immediately

Do not delay in seeking legal counsel if you or a loved one has experienced:

Catastrophic or permanent injury following a medical procedure.
Death that you suspect was caused by medical error.
A severe worsening of your condition due to a clear misdiagnosis or delayed diagnosis.
Surgical errors, such as wrong-site surgery or foreign objects left in the body.
Birth injuries to either mother or child.
Any situation where a medical provider admits an error occurred.

The strength of a medical malpractice claim often degrades with time as evidence becomes harder to secure and memories fade. Prompt, expert legal action is your most powerful tool.

Conclusion

While Ecuador's healthcare system provides excellent care for many, medical errors can and do occur. The legal system provides a clear but complex path to accountability and compensation. Success requires navigating this path with precision, supported by specialized legal and medical experts. By understanding the specific requirements—from securing the historia clínica with a solicitud notariada to funding an informe pericial and navigating mandatory mediation—you can approach this daunting process with clarity and confidence.