Medical liability: obligation of means and lex artis
- Topic
A doctor promises careful care in line with the lex artis, not a cure; liability arises when the doctor departs from it and causes harm.
What it is
Medical liability is the duty to answer for harm caused to a patient during care. In Colombia the general rule is that the doctor has an obligation of means: the doctor must apply knowledge, care and the adequate resources, but does not guarantee a cure. Conduct is judged against the lex artis, the set of practices accepted by medical science for a given case. One act can lead to ethical liability (ethics tribunals), disciplinary, civil (compensation) and criminal liability, and each runs separately.
Key facts
- Obligation of means: the doctor commits to act with diligence and competence; Law 1164 of 2007, art. 26, says so expressly.
- Obligation of result: the debtor promises a specific result; whether it applies when a result is promised is debated, but the health workforce law makes no such exception.
- Lex artis: acting with diagnostic and therapeutic means accepted by recognised scientific institutions (Law 23, art. 12) and with autonomy exercised within ethics, rationality and evidence (Law 1751, art. 17).
- Foreseen risk: the doctor answers up to the risk foreseen and warned of (Law 23, art. 16); not for unforeseeable effects (Decree 3380 of 1981, art. 13, compiled in Decree 780 of 2016).
- Elements usually required for civil liability: negligent conduct, harm and a causal link between them.
- The medical record is the main evidence: it shows what was done, why, and what the patient was told.
In clinical practice
- Record the warning of the foreseen risk in the medical record, or why it could not be given (Decree 780 of 2016, art. 2.7.2.2.1.1.12).
- Calling a case conference or consultation when the case demands it shows diligence (Law 23, art. 19).
- A known and disclosed complication is not malpractice by itself; failing to monitor or respond properly is.
- Disclosing an error to the patient and documenting it is an ethical duty and reduces conflict.
Legal framework in Colombia
- Law 1164 of 2007, art. 26 (amended by Law 1438 of 2011, art. 104): the professional act creates an obligation of means based on professional competence.
- Law 23 of 1981, arts. 12, 15 and 16: accepted means, ban on unjustified risks, consent and foreseen risk.
- Decree 3380 of 1981, arts. 9 to 13 (Decree 780 of 2016, arts. 2.7.2.2.1.1.9 to 2.7.2.2.1.1.13): unjustified risk, warning of foreseen risk, its exceptions and unforeseeable effects.
- Law 23 of 1981, art. 76: the ethics tribunal informs the competent authority if the facts may be a crime or a civil or administrative wrong.
Test yourself
Think of the answer, then tap the question to see it.
Which Colombian law says the medical act creates an obligation of means?
Law 1164 of 2007, art. 26, amended by Law 1438 of 2011, art. 104.
What is the lex artis?
The set of practices accepted by medical science for a given case; the doctor's conduct is compared with what a prudent colleague would do with those means.
Is a doctor liable for an unforeseeable adverse reaction?
No. Law 23 limits liability to the foreseen risk (art. 16), and Decree 3380 of 1981 exempts the doctor from effects that are impossible or hard to foresee (art. 13).
What elements are usually required for civil medical liability?
Negligent conduct (departing from the lex artis), harm to the patient and a causal link between the conduct and the harm.
Connections
Educational content on ethics and health law; not legal advice. Laws and case law change: each page links the official text and says when it was last checked. For a real case, read the text in force and ask a lawyer or the medical ethics tribunal.
Sources: Ley 1164 de 2007, art. 26: acto propio de los profesionales de la salud (Ministerio de Salud y Protección Social, 2007); Ley 23 de 1981, por la cual se dictan normas en materia de ética médica (Función Pública, Gestor Normativo, 1981); Decreto 780 de 2016 (compiles Decree 3380 of 1981) (Ministerio de Salud y Protección Social, 2016).
Spotted a mistake?We are always improving for the community. Tell us what is wrong and our team will review it.Report a mistake
Representative model, for educational purposes only.