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Legal aspects of the pandemic caused by Covid-19. Damage claims

Many situations are causing the spread of the pandemic, before which the first question to ask is who will assume compensation for both property and moral damages.

Francisco Lorenzo Martínez

Date 14/04/2020

Many situations are causing the spread of the pandemic, before which the first question to ask is who will assume compensation for both property and moral damages.   

The Patient Ombudsman has published a decalogue of the situations that can be claimed at the judicial level caused by the Covid-19 situation and which we will comment on, always being necessary in these cases the individualised-study of each situation:

1. ELDERLY ABANDONED IN RESIDENCES. 

The consequences derived from these situations are subject to criminal complaint, since the deceased have not received the necessary help and relief, having in many cases abandoned themselves to their fate, leaving them to die without any care. The complaint could be for omission of the duty of relief, injuries and even reckless homicide, plus the corresponding civil compensation

2. VICTIMS OF ERRORS AND NEGLIGENCE. 

Other situations that are known and that are civilly claimable for situations that affect disregarded or neglected citizens. These are the cases in which they have been discharged prematurely, or because a surgical intervention was delayed, or because an inadequate treatment has been applied, suffering as a consequence of the pandemic an aggravation of their disease with sequelae and damage to their health.

3. COVID-19 PROTOCOL ERRORS. 

Those persons who, by mistake in their diagnosis by Covid-19, have died without having a respirator or have not been admitted to an ICU are criminally reportable.

4. BAD MANAGED WAITING LIST. 

Situations in which there have been people who have died while waiting for a respirator or entering the ICU because the waiting list has been mismanaged within the emergency department are also criminally reportable.

Even though sufficient resources existed, due to recklessness and non-invincible negligence, they have not been provided with adequate treatment and means causing death. It also includes cases in which, although treatment in a public centre is not possible, it has not been referred to a private hospital centre.

In this situation, it is necessary to include the elderly deceased in residences who have been denied public hospital care due to the saturation experienced and those responsible for the residence did not take them to private centres.

5. ASSET LIABILITY OF THE ADMINISTRATION. 

Through administrative litigation, those people who have suffered damage or harm to their people and / or property as a result of the pandemic, have the right to sue the Central Government, as well as the health services of the Autonomous Communities. The patrimonial claim against the administration is based on the lack of initiative and negligence of the administration in not having acted preventively by not taking into account or heeding warnings from both the EU and the WHO of the advance of the pandemic and of WHO's warnings of the need to purchase protective materials and medicines. The cases of China and Italy were highly expressive of the seriousness of the situation that was looming since January 2020.

6. ABSENCE OF WORKER PROTECTIONS. 

Those workers, military and officials who have suffered injuries or death caused by the manifest violation of the Occupational Risk Prevention Law, in the absence of both collective and individual organisational and protection measures.

The situation should also extend to the return to work of hundreds of thousands of Spaniards in the sectors where their economic continuity has been allowed, without offering contagion prevention measures, leaving many workers exposed to the contagion of the virus and its possible spread.

In these situations, both the administration that does not provide the means to its officials as well as the employer that does not guarantee the health of its workers is responsible, unnecessarily exposing them to the virus without due guarantees.

7. CLAIM OF COVID-19 AS A WORK ACCIDENT. 

Claims against the Social Security of the recognition as a work accident of the disease if it has been contracted during the performance of their work by workers, officials and military personnel with exposure to the virus or if it has been in isolation situations due to possible contagion of the virus, having been confined to avoid other infections.

8. DENIAL OF SICK LEAVE. 

Denial of sick leave to patients with risk factors who have been harmed as a result of said denial will also be claimable.

9. CLAIMS AGAINST FUNERAL ESTABLISHMENT. 

Actions against funeral establishment for breach of contract and poor provision of their services.

And here there are several types of errors: the identification of the deceased, undue delays in carrying out the contracted benefits and abuses in the collection of funeral services.

10. LACK OF INFORMATION. 

Finally, the lack of information to patients or their families about the diagnoses, alternative treatments and possible risks of those infected by Covid-19 will also be reclaimable.

The media warns that the information that comes out daily to the public light indicates that there has been blunt concealment of the information about the pandemic, disregarding the warnings from the WHO and the EU about it. Currently, not all tests are done because there are not enough tests and the deceased daily continue to add figures because there are no respirators and in other cases, because they are abandoned in residences to their fate.

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