Nuestro asociado Guillermo Martí publica en el Diario La Ley una tribuna acerca de la interrupción por medio de burofax en cuanto a la prescripción en la reclamación sanitaria de la responsabilidad patrimonial de la administración sanitaria y diligencia preliminar.
Martí analiza en profundidad la sentencia del Tribunal Supremo número 894/2022 del 30 de junio. Trata sobre una reclamación de indemnización por responsabilidad patrimonial de la Administración Pública por daños derivados de la actuación sanitaria. En concreto, aborda la interrupción del plazo de la prescripción del derecho a reclamar.
El sujeto que sufre los daños es una paciente que terminó perdiendo un ojo tras una operación en el Servicio de Oftalmología del Hospital Universitario Puerto Real —Servicio Andaluz de Salud (SAS)—. La intervención fue el 24 de febrero de 2016, fecha dies a quo a efectos de la prescripción al conocerse el alcance de las secuelas.
En septiembre del citado año se presentaron —por la afectada— en el Juzgado de Primera Instancia unas diligencias preliminares para reclamar la historia clínica. Se puso de manifiesto mediante burofax al SAS el 22 de diciembre de 2016, mediante el que también se solicitó la interrupción de la prescripción.
Prescripción en la reclamación sanitaria de responsabilidad patrimonial
El SAS entendió que se trataba de una reclamación de responsabilidad patrimonial, por lo que procedió a incoar un expediente. Igualmente, solicitó a la perjudicada para que subsanara lo que entendía como una responsabilidad patrimonial. El 21 de diciembre se formalizó la reclamación por responsabilidad patrimonial, tras la consecución del historial clínico por parte de la afectada.
Judicializado el asunto, el Juzgado de lo Contencioso-Administrativo número 2 de Cádiz condenó a la Administración al abono de más de 80.000 euros. La sentencia fue confirmada por el Tribunal Superior de Justicia de Andalucía. Tras ser recurrida en casación, dio lugar a la sentencia del Tribunal Supremo, que dio la razón a la afectada.
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