THE PROFESSIONAL RESPONSIBILITY OF PHYSICIANS
Jorge Mario MAGALLÓN IBARRA*
Original Text (Spanish) PDF
SUMMARY
I. The right to health protection according to its constitutional basis. II. Regulations of public health in civil law. III. The creation of the National Medical Arbitration Commission. IV. Regulations of human behavior. V. Civil obligations in the roman jurisprudential tradition. VI. Strict liability in casuistic premises considered in the Institutes of Justinian. VII. Admittance in mexican civil legislative tradition and punishment of unlawful behavior that causes damage and its subsequent redress. VIII. Punishment for pecuniary and non-pecuniary damage. IX. Historical support in the iniurias catalog set forth and punished in the eighth of the twelve tables as the first written roman law (451 b.C.). X. Lex Aquilia (467 b.C) and its ratification in the Institutes of Gaius. XI. Manifestations of intention and guilt compiled in the of Justinian. XII. The ancient concept of iniuria. XIII. A surgeon’s professional responsibility in roman rule. XIV. The assumption of skill. XV. Mexican jurisprudential criteria. XVI. Approval of historical criteria. XVII. The imprudence as narrated by Ulpianus. XVIII. Provisions in force on civil liability. XIX. Other judgments about tortious liability. XX. Dilemmas between guilt and negligence. XXI. Supplementary jurisprudence. XXII. Torts in the source of civil law.
I. THE RIGHT TO HEALTH PROTECTION ACCORDING TO ITS CONSTITUTIONAL BASIS
The Legislative Branch –aware of the demands that our times have imposed on our collectivity– has legislated not only the general rule set forth in the fourth paragraph of Article 4 in the Constitution which states that as an individual right: "...every person has the right to health protection. The law will define the ways and means for access to health services and will establish the concurrence of the Federation and the federal entities in matters of public health in general, in conformance to that which is specified by section XVI of Article 73 of this Constitution." The Official Gazette of the Federation, published on February 7, 2000, informs us that this obligation has been supplemented and reinforced with the specific incorporation of children’s rights, in declaring that:
Boys and girls are entitled to having their needs of food, health, education and wholesome recreation satisfied for their complete development. Parents or guardians have the obligation to preserve these rights. The State shall provide what it is needed to promote respect for children’s dignity and full use of their rights. The State shall grant opportunities to individuals so that they may contribute to the fulfillment of children’s rights.
II. REGULATIONS OF PUBLIC HEALTH IN CIVIL LAW
The governing principles presented in the two paragraphs above must be observed according to the rules in force contained in the General Health Law dated July 1, 1984, which in Article 3, sections 1 and VII, states as a matter of public health:
1. The organization, control and surveillance of the rendering of service and establishing health services for those referred to in Article 34, sections 1, III and IV of this law...
VII. The organization, coordination and surveillance of the professional, technical and assistant healthcare activities.
We consider it necessary to stress the importance given to Articles 34, 38, 51, 54 and 469 of the General Health Law:
Article 34. For the purpose of this Law, healthcare services, referring to the providers of these services, are classified as:
I. Public services for the population in general;
II. Services to the beneficiaries of public social security institutions, or the services that these institutions render to other users, using their own funds or at the behest of the Federal Executive Branch.
III. Social and private services, however they may be negotiated, and
IV. Other services rendered in compliance with that established by the health authority.
Article 38. Private health services are those rendered by individuals or corporations under the conditions accorded with users and subject to the legal, civil and mercantile codes. Regarding rates, that which is set forth in Article 43 of this Law shall apply. These services can be directly negotiated by users or through individual or group insurance systems.
Article 51. Users are entitled to timely and quality healthcare services and to receiving professional and ethically responsible assistance, as well as respectful and decent treatment from the professionals, technicians and assistants.
Article 54. Competent public health authorities and health institutions themselves shall establish the guidance and counseling procedures for users about the use of the healthcare services they require, as well as the way users or applicants can file their complaints, claims and suggestions regarding the rendering of healthcare services and, if the case, regarding public servants’ lack of integrity.
Article 469. Imprisonment from six months to five years and a fine from five to one hundred twenty-five days of minimum wage in force in the economic zone in question and suspension of license to practice this profession for up to two years shall be imposed on any medical professional, technician or assistant who without a justified reason refuses to assist an individual, in the case of an emergency, risking the person’s life.
Moreover, if damage was caused due to the lack of medical intervention, the judicial authority can imposed definite suspension.
III. THE CREATION OF THE NATIONAL MEDICAL ARBITRATION COMMISSION
In reference to the regulatory framework above, it is fitting to include the reasons that determined the creation of the National Medical Arbitration Commission, decreed by the Executive Power of the Nation, as published in the Official Gazette of the Federation on June 3, 1996, as a response to the need that people in our country, in addition to the ordinary jurisdictional agencies, have means that contribute to the supervision and protection of healthcare, as well as, to improve quality in rendering medical services. Thus, an agency is established so that users as well as medical service providers can impartially contribute to the analysis, appraisal and solution of complaints and conflicts that arise from them, due to what may be considered irregularities in the rendering or refusing to render medical services.
Once the basic juridical documents guiding the criteria that converge in constitutional as well as ordinary mandates have been presented, we consider it indispensable to review when and how the rules that recognize the age-old hypotheses that human interaction has brought about arose; since there is no time gap for human intelligence, since these rules are still valid in our times.
IV. REGULATIONS OF HUMAN BEHAVIOR
Arising from the essence of the most remote ancient times and underlying human existence, an aphorism which has permanent value ubi societas, ibi jus, recognizes that where there is society there is law and that, reciprocally and implicitly, demands the addition ubi jus, ibi societas: where there is law, there is society.
The premise referred to in the previous paragraph -as the starting point of the present topic- is for the purpose of emphasizing that the juridical world in which we live and act is not composed of regulations considered alien to human behavior, but –to the contrary- these regulations are the logical result of activities of a permanent and constant nature that are created within the community, that are manifested as an individual’s duties towards others and, also, as authority that the individual always has before them. In that position, the individual must have the certitude of having the legal right to fulfill said duties -also known as obligations- and the exercise of certain authority –that translate into rights-.
In the domain of the legal world, law organizes the regulation of the obligations contracted between people –also known as right to credit- which consists of personal debts generated between individuals; recognizing that these debts establish legal ties contracted between two or more people –in which one of them is called the creditor and the other is the debtor- that empower the first individual to demand the other one or ones for the delivery of something, the rendering of a service or its abstention. Thus, in the analysis of the elements that constitute the regulatory structure of that account receivable, we acknowledge the participation of four elements: 1st An active individual named the creditor -who has the personal authority to demand from the State prompt coactive performance of its agencies- in order to achieve fulfillment of the claim, subject-matter of the obligation; 2nd The passive individual named the debtor -who is responsible for full compliance with the subject-matter of the obligation-; 3rd The legal relation established between the parties and that links them; and 4th The subject-matter of the obligation that will demand a behavior to carry it into effect -a facere or act- summarized in three verbs: dare, prestare and/or facere; recognizing that dare is to transfer ownership of an object; prestare is to ensure its enjoyment and facere is to act upon a behavior or, inclusively the non facere, that is, the abstention of doing something. To these aspects an additional one called pati is appended. This means to tolerate, to permit or to let do. Of course, in this combination the creditor or active holder is the one to which something is owed; the debtor is the one who is obliged to fulfill that which he accepted as his responsibility: be it to give, to lend, to do, not to do or to tolerate1.
V. CIVIL OBLIGATIONS IN THE ROMAN JURISPRUDENTIAL TRADITION
The idea presented about the nature of civil obligations outlines all the Roman tradition underlying our civil laws, since it assumes the definition expounded in the Institutes of Justinian (issued in the year 533 of the Christian era by the Byzantine emperor): "obligatio est juris vinculum, quo necessitate adstringitur alicuius solvendae rei, secundum nostrae civitatis iura (obligation is an entailment of right by which we are compelled by the need to pay for something according to the laws of our city)."2
To the above, we add that the source of personal obligations or right to credit are externally manifested personal acts or behaviors , which have been intentionally defined by parties in the legal sphere for the purpose of obtaining the legal consequences given and that -therefore- are recognized and classified as settlements and contracts that constitute agreements arisen and expressed by the will of the parties in order to create, transfer, modify or terminate rights and obligations; establishing that the settlements that produce or transfer obligations and rights are called contracts (Articles 1792 and 1793 of the Civil Code in force). It is fitting to add that in the Roman system, contractual essence was not distinguished by convention, but for its reciprocity utroque citroque obligatio.
Another source of rights and obligations is incorporated into the law itself, which outside the regime’s scope regarding the autonomy of the will of the parties -and based on its sovereignty- imposes its norms –both generally and abstractly-, rights and obligations –such as sustenance among relatives- (Articles 301 to 323 of the Civil Code in force) and the obligation of Mexicans to contribute to public spending, including that of the Federation, as well as the state or municipality where they reside in a manner that is proportional and equitable (Article 31, section IV of the Political Constitution of the United Mexican States).
Besides contracts and the law, there is a third additional source of obligations that arise from legally-significant events that create legal ties between individuals, without it being necessary for the parties’ specific or concrete will to coincide for the purpose of attaining this result. Classic examples of these unilateral events are the birth of an individual, reaching legal age and even death. It should be added, that when such events were generated bilaterally, they were traditionally recognized by the name of quasi-contracts and quasi-crimes (due to their similarity to contracts as well as crimes), so that they entail -and continue to do so in civil legislation- established procedures that would recognize assertions of involuntary or unintentional actions, in which though the essential element of the expression of will was lacking would include these events within the classification of contracts. However, these events were so like contracts that even though the behavior carried out was not for the purpose of creating obligations, they had results that determined them. Thus, as quasi-contracts or even as quasi-crimes, this circumstance led to the regulation of these events by Roman jurists, since it was acknowledged that said legally-significant events had within them the remains of a well-known ethical basis inspired by Aristotelian principles which combine the convictions of natural law with equity; so that they let seek an amendment to the principle of the universality of the law, namely, a better type of justice than the legal one, demonstrating that equity is mistaken for justice, and is superior to it because it renders important consequences in the legal sphere.3
We have already pointed out –in another section-4 that said legally-significant events have a dual classificatory perspective: those of a strictly physical nature, the product of nature, and those legally-significant events that are the result of behavior, but not of willful behavior that aimed at obtaining different results in the legal sphere. This directly stems from the frequently mentioned quasi-contracts and quasi-crimes, originally compiled in Gaius’s The Institutes –a professor to young students of Roman law, who lived around the first third of the 2nd century of the Christian era- as a different source of obligations that arise from contracts or crimes, but were seen as mandatory between the parties though these did not bear the characteristics of contracts due to the lack of the element of will. However, because of their affinity, they had legal value in Roman law. Likewise, when so-called quasi-crimes are studied, it is found that the obligations that arise from them enter within the scope of private law and, even though, the obligations are similar to those that arise from a crime, they are different from crimes because instead of punishing the offender with a reparation because he acted intentionally, he is punished because his guilty or negligent attitude caused damage. The historical source for both legal concepts is found in the books three, title XXVII and four, title V, of said Institutes of Justinian, under the title of obligationibus quasi ex contractu and obligationibus quae quasi ex delito nascuntur.
VI. STRICT LIABILITY IN CASUISTIC PREMISES CONSIDERED IN THE INSTITUTES OF JUSTINIAN
We have previously noted that, when the classificatory principle of obligations that arise from unlawful acts were regulated in the Institutes of Justinian, we found that such provisions -based on the examination of various casuistic premises- included the following regulatory established procedures of future behavior:
The obligation incurred by a judge who delivers an unjust or partial decision cannot properly be called delictal, and yet it does not arise from contract; consequently, as he cannot but be held to have done a wrong, even though it may be due to ignorance, his liability would seem to be quasi-delictal, and a pecuniary penalty will be imposed on him at the judge’s discretion.
1. Another case of quasi-delictal obligation is that of a person from whose residence, whether it be his own, or rented, or gratuitously lent him, anything is thrown or poured out whereby another is injured; the reason why his liability cannot properly be called delictal being that it is usually incurred through the fault of some other person, such as a slave or freedman. Of a similar character is the obligation of one who keeps something placed or hung over a public way, which might fall and injure any one. In this last case the penalty has been fixed at ten aurei; in that of things thrown or poured out of a dwelling-house the action is for damages equivalent to double the loss sustained, though if a free man be thereby killed the penalty is fixed at fifty aurei, and even if he be merely injured he can sue for such damages as the judge shall in his discretion award; and here the latter should take into account the medical and other expenses of the plaintiff’s illness, as well as the loss which he has sustained through being disabled from work.
2. If a son in power lives apart from his father, and anything is thrown or poured out of his place of residence, or if he has anything so placed or hung as to be dangerous to the public, it is the opinion of Julian that no action lies against the father, but that the son should be made sole defendant; and the same principle should be applied to a son in power who is made a judge, and delivers an unjust or partial decision.
3. Similarly ship-owners, and inn and stable keepers are liable as on a quasi-delict for willful damage or theft committed in their ships, inns, or stables, provided the act be done by some or one of their servants there employed, and not by themselves; for the action which is given in such cases is not based on contract, and yet as they are in some sense at fault for employing careless or dishonest servants, their liability would seem to be quasi-delictal. In such circumstances the action, which is given, is on the case, and lies at suit of the injured person’s heir, though not against the heir of the ship-owner, or inn or stable keeper.
On concluding the transcription of the text in the previous paragraphs , we comment that this reading allows us to observe that in the established procedures of the quasi crime the Roman system included strict liability, which results from the so-called theory of tortious liability. It is so named because the damaging result of the action lacks distinct intention. That is, the active agent lacks subjectivism in the sense that his intention is not to produce consequences in the legal sphere, because otherwise, if that intention were subjectively manifested, so that his intention was evident, then there would be that kind of responsibility. However, if his behavior is only objective and it –in turn- involves a risk -that was created in it and by it- it will concluded that the consequences are going to make him responsible even if it does not arise either as a consequence of a crime or as the result of a contract. With this, we can understand the premise compiled by Justinian legislation, in which the judge who makes a trial of his own (that is, that he stops being impartial) and who commits a breach –though it only be out of ignorance– is responsible. The occupant of a room from where something is thrown and causes damages -even though the action is not his- he is considered responsible. Whoever places or hangs an object in a public road that causes damage on falling is punished with a penalty. The owner of a vessel, an inn or a stable where a robbery takes place is responsible for having relied on bad men, which involves -jointly or separately– strict liability. From all of this combination of elements this source of obligations is called the theory of strict liability or tortious liability. In Anglo-Saxon law they are called torts and we will mention them ahead. The Civil Code in force in Mexico City -as already mentioned- regulates this matter under the heading of obligations that arise from unlawful acts, and its fifth chapter includes Articles 1910 to 1934, inclusively.5
VII. ADMITTANCE IN MEXICAN CIVIL LEGISLATIVE TRADITION AND PUNISHMENT OF UNLAWFUL BEHAVIOR THAT CAUSES DAMAGE AND ITS SUBSEQUENT REDRESS
It is clear -and we mention it again- that this matter in its established procedures -in Articles 1910, 1913, 1924, 1931 and 1932 of the same Civil Code- recognizes and regulates the behavior of an individual who, by acting unlawfully or against good customs, damages another, is obligated to redress the damage unless he proves that the damage caused was the result of inexcusable fault or negligence on behalf of the victim. To this principle it should be added that when an individual uses mechanisms, instruments, devices or substances that are dangerous in themselves, because of to the speeds they reach, their explosive or flammable nature, the electric energy they conduct or other similar causes, he is obligated to hold himself liable for the damage he causes even if he does not act unlawfully, unless he proves that the damage was the result of an inexcusable fault or negligence on behalf of the victim. Likewise, the premise of co-responsibility of employers and owners of business establishments who are obligated to hold themselves liable for damages and injuries cause by their workers or employees in doing their jobs is brought forward. This responsibility ceases if they prove that in doing damage they cannot be accused of any fault or negligence. In such precept it is also acknowledged that the owner of a building is liable for the damages that arise from the destruction of all or part of the building, if the destruction happens because the building lacks the necessary repairs or construction flaws. Likewise, property owners shall be liable of damages caused:
1. By the machine explosions or the ignition of explosive substances; II. By smoke from gases that are harmful to people or property; III. By trees falling if this is not caused by an act of God; IV. By fumes from sewers or infected material deposits; V. By water deposits that moisten a neighbor’s wall or falls on his property; VI. By the weight or movement of machines, by the agglomeration of material or animals that pose a health risk or by any cause which for no right causes any damage.
By reading the above norms, we can state that these basically establish the materialization of the objective obligation to redress the damage caused, when acting unlawfully or against good customs; as well as when -depending on the risk caused- mechanisms or substances that are dangerous in themselves are used, because of the speeds they reach or their explosive or flammable nature, due to the electric energy they conduct or other similar causes. Likewise, the owner of a building is liable for the damages that arises from the destruction of all or part of the building, or for the explosion of machines or the ignition of explosive substances; smoke or gases; trees falling; sewer fumes; water deposits or the weight or movement of machines; agglomeration of material or animals, or any cause which for no right causes any damage.
According to the rules we have presented, the law itself imposes a punishment that involves the redress of damage. Thus, the incompetent individual that causes it is held responsible unless the responsibility falls on those responsible for him. At the same time it is set forth that if someone is harmed in exercising a right, there is the obligation to compensate this person if it is proven that the right was only exercised to cause damage, without benefits for the holder. Moreover, when damages are provoked without the use of the mechanisms, instruments, etc, referred to in Article 1913, and with no fault or negligence of the parties, each will sustain the damages with no right to compensation; in the understanding that the redress of damages must constitute –the victim’s decision- the restoration of the previous situation -when possible- or payment for damages and injuries.
In considering the concepts above, it should be added that if the damage is caused to persons and causes death, permanent total disability, permanent partial disability, temporary total disability or temporary partial disability, the degree of redress is determined according to that which is set forth in the Federal Labor Law, and to calculate the corresponding compensation the basis used shall be four times the highest minimum wage in force in the region and the number of days this Law grants for each kind of disability shall be given. In the event of death, compensation shall correspond to the victim’s heirs. The credits generated thereof -if the victim was a salaried worker- are non-transferable and shall be covered in a single payment, unless there is an agreement between the parties. Those same rules shall apply in the case of transportation, in which the carrier are liable for damage caused to individuals due to a driver error or a flaw in the means of transportation they use. This fault is assumed provided that the business executive does not prove that the harm occurred because of an act of God of which he cannot be accused.
VIII. PUNISHMENT FOR PECUNIARY AND NON-PECUNIARY DAMAGE
We think it is important to note that in all of the above precepts, pecuniary damage is punished. Therefore -in civil legislation- the redress of non-pecuniary damages is also included. This should be understood as the effects a person has in his feelings, affections, beliefs, respect, dignity or the respect others have for him; assuming that there was non-pecuniary damage when the individuals’ freedom or physical or psychological integrity was illegally harmed or impaired. To this should be added that when an illicit fact or omission causes non-pecuniary damage, the individual liable for it shall have the obligation of redressing the damage through monetary compensation, regardless of having caused material damage either as contractual or extra-contractual responsibility. Whoever incurs in strict liability bears the same obligation to redress the non-pecuniary damage as set forth in Article 1913. Furthermore, the State and its public servants are obligated to redress damages and injuries caused by the duties entrusted to them. This responsibility will jointly shared when referring to intentionally unlawful acts, and subsidiary for other cases. This can only be put into effect against the State when the public servant who is directly liable does not have property or the property he owns is not enough to redress the damages and injuries caused by public servants. It is evident -moreover- that the one that pays for damages and injuries caused by his servants, employees, officials and workers, can reclaim -which means to seek recovery– paid damages and injuries. It is important to note that law also establishes that the action of redressing is non-transferable to third parties through an agreement among the living and is only transferred to the victim’s heir if the victim attempted legal proceedings during his lifetime. We think it fitting to point out that in cases of non-pecuniary damage, the amount of the compensation shall be determined by the judge, taking into account the injured rights, the degree of responsibility, the offender’s economical status and the victim’s, as well as other circumstances in the case.
Moreover, it should be taken into account that in the assessment of said non-pecuniary damage, when it has affected the victim in terms of his respect, honor, reputation or consideration, the judge shall order –at the victim’s request and laid on the offender- the publication of a summary of the verdict, which suitably shows its nature and scope, through suitable media. Likewise, those cases in which damage arises from an act that has been transmitted by the media, the judge shall order the media to publish the summary of the verdict with the same relevance the original transmission would have had.
The law recognizes the mutual responsibility of redressing the damage of all those who cause damage jointly and, according to that premise; the same punishment is imposed on the attorneys-in-fact, on the corporations responsible for damages and injuries. Moreover, those holding parental authority are held responsible for the damages and injuries caused by the acts of the minors in their care and living with them. This responsibility ceases when minors carry out acts that give rise to this while under the care and authority of other individuals, such as principals of schools, workshops, etc. Then, said individuals shall assume responsibility.
We will end this long explanation by including the responsibility of the head of a household who lives in the house or in part of it, for the damages caused by things that are thrown or fall out of the house. The term of prescription to execute action for redress is two years, as of the day the damage was caused.6
IX. HISTORICAL SUPPORT IN THE INIURIAS CATALOG SET FORTH AND PUNISHED IN THE EIGHTH OF THE TWELVE TABLES AS THE FIRST WRITTEN ROMAN LAW (451 B.C.)
The historical background of the above-mentioned legal established procedures goes back to principles compiled when the first Roman law was written, known as the Twelve Tables (451 B.C). In the eighth table, a catalog of behaviors known as iniurias was established. These were the result of crimes that comprised any conduct that diverged from legal channels. In them -among others– one can observe as a premise with a corresponding punishment:
4. For harm done to another, twenty-five aurei shall be paid by way of penalty.
5. If you cause any unlawful damage… you must make good the loss...
18. When anyone collects interest on money loaned at a higher rate per annum than that of the unciæ, he shall pay quadruple the amount by way of penalty.
21. When a patron defrauds his client, he shall be dedicated to the infernal gods.
It is evident that in the premises listed in said established procedures, the punishment establishes was considered a way to redress damages and injuries caused by the individual who had not properly fulfilled the obligations under his responsibility. It is implied that said punishment was based on a sense of equity that recognized compensation for the damage inflicted.
X. LEX AQUILIA (467 B.C) AND ITS RATIFICATION IN THE INSTITUTES OF GAIUS
Historians believe that the above-mentioned regulations arose from a plebiscite that was probably held around the year 467 (B.C) called for by the demagogue known as Aquilius, who approved the so-called Lex Aquilia (though other analysts place this law in year 529), which was written in three chapters about the punishments with which damages caused under certain circumstances should be constrained.7
Gaius’s teachings, collected in Commentaries, which make up his Institutes, acknowledged preexistence of said Lex Aquilia. In the third one, the following cases were considered:
211. To unlawfully kill is understood to mean where this happens with malicious intent or through the negligence of another; loss which results without the fault of the party who causes it not being punishable by any law, and therefore, he who occasions damage under any circumstances, without negligence or malicious intent will go unpunished.
213. Moreover, the person whose slave was killed has the choice either of prosecuting for a capital crime the person who killed him, or of bringing an action for damages against him under this law.
223. The penalties for injuries (iniuria) provided by the Law of the Twelve Tables were as follows: "For a broken limb (membrum ruptum), retaliation; for a bone broken, or crushed (os fractum aut colisum), three hundred asses, if the party was a freeman, but if he was a slave a hundred and fifty; and for all other injuries, twenty-five asses." These pecuniary penalties seemed to be sufficient compensation in those times of great indigence.
224. At present, however, we make use of another rule; for we are permitted by the Prætor (magistrate) to estimate the damages (iniuria) ourselves, and the judge (iudex) may either condemn the defendant for the amount of which we have estimated it, or for a smaller sum, as he may think proper. The Prætor usually fixes the amount of damages to be paid for an atrocious injury (atrox iniuria), and when he has once decided in what sum the defendant must give security to appear, he establishes this sum as the limit, and although the judge can render a decree for a smaller amount, still, as a rule, on account of his respect for the authority of the Prætor, he does not venture to do so.
225. Again, an injury is rendered atrocious either by the act, as when anyone is wounded, beaten with rods, or severely whipped; or by the place, as for instance, where the injury is committed either in the theater, or in the forum; or on account of the person, for example, where a magistrate is insulted, or an injury (iniuria) is inflicted upon a senator by a person of inferior rank.8
XI. MANIFESTATIONS OF INTENTION AND GUILT COMPILED IN THE INSTITUTES OF JUSTINIAN
The established procedures presented in previous paragraphs allow us to corroborate the regulatory basis from which the imposition of punishment was brought about against the damages caused as a result of non-compliance that harmed the creditor’s assets. However, at the same time, these punishments showed serious thought about intention and guilt, and moreover, about unforeseen circumstances or acts of God, which were incorporated at this time in the Justinian’s legislation, and further developed in the Title III of Book Four of his Institutions as follows:
2. To kill unlawfully is to kill without any right; thus a man who kills a robber is not liable to this action, if he could in no other way escape the danger by which he was threatened.
3. So, too, where one man kills another by misadventure, he is not liable under this statute [Lex Aquilia], provided there is no fault or carelessness on his part; otherwise it is different, for under this statute carelessness is as punishable as willful wrongdoing.
6. Again, if a surgeon operates on your slave, and then neglects altogether to attend to his cure, so that the slave dies in consequence, he is liable for his carelessness.
7. Sometimes, too, unskillfulness is undistinguishable from carelessness, as where a surgeon kills your slave by operating upon him unskillfully, or by giving him wrong medicines;
8. And similarly, if your slave is run over by a team of mules, which the driver has not enough skill to hold, the latter is suable for carelessness; and the case is the same if he was simply not strong enough to hold them, provided they could have been held by a stronger man. The rule also applies to runaway horses, if the running away is due to the rider’s deficiency either in skill or strength.9
Let us review that the ancient texts now under consideration dealt with various concepts that allow to classify and punish behavior: to kill, which means to deprive unjustly someone of life, is to kill without any right. The interpretation of this rule a contrario sensu [in the opposite meaning] should impose the following established procedure: to kill justly is to kill with right. From this, the criterion that incorporates the same provision arises: someone who kills a robber, is not liable to this action, if he could in no other way escape the danger. With reference to this, regulation 14 of the Eighth table, which orders: "14. Provision that prohibits killing a thief caught in the act during the day, without previously asking for help, unless he uses weapons to resist, should be taken into account.
A reading of the previous paragraph gives us better comprehension of the premise under consideration, which to sum up involves the following criterion: "Where anyone commits a theft by night, and having been caught in the act is killed, he is legally killed. Whoever kills a thief during the day, acts with fault or wrongful doing, since he is obligated to ask for help, except if before doing so, the thief fights against him with weapons."
To complete the judgment this norm makes, we should remember two basic elements involved: misconduct and willful wrongdoing! The first is the condition of the behavior that causes damage, is done voluntarily or due to carelessness. In carelessness omission, negligence or lack of care appears concurrently, as does as disregard, which omits due fulfillment of the task. The second element includes malice, which carries the sinister intention to inflict damage.
In considering the two above-mentioned established procedures, Gaius issues a precept in regulation 211 of his third commentary: "211. To unlawfully kill is understood to mean where this happens with malicious intent or through the negligence of another; loss which results without the fault of the party who causes it not being punishable by any law, and therefore, he who occasions damage under any circumstances, without negligence or malicious intent will go unpunished."
XII. THE ANCIENT CONCEPT OF INIURIA
When the concept of the ancient iniuria (injury) is examined we find that its etymological structure implies that it constitutes an in iuria, which was that behavior that lacked iuria, that is, the recognition or protection of law. In addition to this, it was specified in the Institutes of Justinian that injura [injury] in its general meaning is any act against a right. In a special sense it means outrage, which comes from the word ‘offend’ in Greek, or guilt, adixnua in Greek, as in Lex Aquilia, when it states that damage causes injury. Other times, it is taken to mean iniquity and injustice, which the Greeks called adixixp . Indeed, that used to denote the individual against whom the praetor or judge has pronounced an unfair verdict, inflicting an injury against him.10
We shall review in detail that Lex Aquilia contemplates the two provisions we reiterate below:
6. Again, if a surgeon operates on your slave, and then neglects altogether to attend to his cure, so that the slave dies in consequence, he is liable for his carelessness.
7. Sometimes, too, unskillfulness is undistinguishable from carelessness, as where a surgeon kills your slave by operating upon him unskillfully, or by giving him wrong medicines.
The first of the two premises considered in the above regulations -as a consequence of a causal relation- include the following definition of guilt:
A) The operation on a slave by a surgeon.
B) The neglect of the surgeon who operated to attend the patient’s cure.
C) The patient’s death.
Conclusion: The surgeon is guilty.
XIII. A SURGEON’S PROFESSIONAL RESPONSIBILITY IN ROMAN RULE
On examining the rules under consideration, the professional responsibility of the physician to care about the recovery of the patient’s health so that the patient properly makes a full recovery is implicit because lack of attention on the surgeon’s side may hinder a cure. Simultaneously, in all of this, the modernization of so-called strict liability or tortious liability theory is latent, and will remain in force for all the steps the professional takes to penalize negligence, carelessness, lack of skill or imprudence.
XIV. THE ASSUMPTION OF SKILL
In the second premise under consideration, the relation of events follows the same causality:
A) A surgeon’s lack of skill during an operation.
B) Bad or erroneous performing of the operation.
C) Bad, erroneous or inopportune administration of a medicine.
D) The patient’s death because of the surgeon’s error.
In this second premise, the basis of the surgical operation -that the physician will carry out in practicing in his professional capacity- is supported in the assumption of skill that will aid him in the practice of the work he accepts to do. Therefore, the assessment that the law attributed to unskilled action was to have operated badly, that is, to have carried out -in the complete task- an action that should not been carried out, or, alternatively, to have operated properly, but have imprudently administered the wrong medicine, which caused the patient’s death.
XV. MEXICAN JURISPRUDENTIAL CRITERIA
Analysis of the alternatives that arise from the cases in question has historically allowed us to define the regulations incorporated into the legal norms in force. There one can find the punishment that corresponds to strict liability -unintentional- and to tortious liability. It is fitting to mention the criteria construed by the then Third Chamber of the Mexican Supreme Court of Justice in a verdict pronounced and published in the Weekly Federal Court Report, for the sixth epoch, fourth part, volume LVII, page 133, in direct writ of amparo 669/58 filed by Azucarera Veracruzana, S.A. and determined unanimously with five votes from the ministers making up said court. The criteria related -then- with judicial precedent number 1639 about strict liability, which in the part of interest states:
Modern legislation defines the objective theory of risk and not the subjective theory of guilt. Modern law, the doctrine states, replaces the concept of responsibility with the concept of redress. It is no longer about attributing responsibility based on intention or guilt, but establishing who must redress the damage. When damage is caused due to the use of dangerous things, common opinion attributes redress to the person who caused the damage.
Reference to the above criteria expands because in the first part of said judgment, our supreme court’s criteria is presented as to what can be foreseen, what is not foreseen and fortuitous events:
Strict Liability. Legislation, jurisprudence and doctrine have analyzed responsibility in a car accident, and, even if in criminal law a fortuitous event is a circumstance that exonerates of criminal responsibility, and in cases of car accidents this exonerating circumstance is applied most frequently because damage is caused by causes that are usually other than the will and precautions that conscientious individuals employ while carrying out an activity in order to avoid injuring the rights of others, the event happens. Fortuitous events, in criminal matters, are mainly constituted of accidents that cannot be foreseen or if they are, they are unavoidable. A common example is that of involuntary breakage of an essential part of the mechanism. The events are not the result of a negligent act care has been taken of the mechanisms, repairs and normal performance, so it is usual to absolve the driver who cannot control the vehicle’s movement due to brake failure. Summarizing, this is an unlawful act carried out with due attention, not only with the usually required amount, but also with that needed in this specific case. Criminally the driver cannot be exonerated in cases of recklessness, different from fortuitous events, however it must be proven that there was insufficient attention on behalf of the person responsible, in failing in proper care or precautions. These considerations do not apply in the assumption of strict liability regulated by Article 1913 of the Civil Code, which states: "when an individual uses mechanisms, instruments, devices or substances that are dangerous in themselves, because of to the speeds they reach, their explosive or flammable nature, the electric energy they conduct or other similar causes, he is obligated to hold himself liable for the damage he causes even if he does not act unlawfully, unless he proves that the damage was the result of an inexcusable fault or negligence on behalf of the victim." This rule establishes the objective concept that dangerous things are those that normally cause damage, that is, things that virtually or potentially can cause damage, so just its use is the assumption on which the law bases itself to attribute the consequences of the owner’s responsibility...
XVI. APPROVAL OF HISTORICAL CRITERIA
Looking back at the historical part we have presented in this topic, we deem it fitting to include the comment that in the 19th century the Spanish expert Pedro Gómez de la Serna stated that Lex Aquilia -when referring to men– limited itself to slaves, because freedmen are not capable of their assessment. Therefore, in the case that a freedman was killed, only the Lex Cornelia de Sicariis applied, if there was intention to commit murder.11
XVII. THE IMPRUDENCE AS NARRATED BY ULPIANUS
The analyst mentioned above narrates an interesting case –which happened in ancient times- included in Justinian’s Digest (& 4, law 9, title II, book IX) in which Ulpianus refers to the jurisconsult Mela in the following terms:
...if, while several persons are playing ball, the ball having been struck too violently should fall upon the hand of a barber who is shaving a slave at the time, in such a way that the throat of the latter is cut by the razor; the party responsible for negligence is liable under the Lex Aquilia. Proculus thinks that the barber is to blame; and, indeed, if he had the habit of shaving persons in a place where it is customary to play ball, or where there was much travel, he is in a certain degree responsible; although it may not improperly be held that where anyone seats himself in a barber's chair in a dangerous place, he has only himself to blame.
We shall corroborate the comments with which Gómez de la Serna completed the reference to this issue:
The lack of skill, generally, is not guilt; but it is considered thus in those individuals who practice an art or science if they cause damage due to error or lack of capability.
The natural effects of illnesses should not be confused with the lack of skill in the physicians called to cure them. However, it must have been difficult to always execute the action of Lex Aquilia for the lack of skill in the physicians whose errors, as mentioned before, are buried in the ground, and whose benefits are revealed by the sun...
Thus in the third chapter of Lex Aquilia and in the first, guilt is punished as well as intention. Therefore, Paulus says (& 3, law 30, title II, book IX of the Digest,) where anyone sets fire to his stubble or thorns for the purpose of burning them, and the fire increases and spreads so as to injure the wheat or vines of another; we must ask whether this happened through his want of skill, or his negligence; for if he did this on a windy day he is guilty of negligence, as a person who affords an opportunity for the commission of damage is considered to have caused it; and he is equally guilty if he did not take precautions to prevent the fire from spreading. If, however, he took all necessary precautions, or a sudden, violent gust of wind caused the fire to spread, he is not guilty of negligence, and hence he will not be held responsible by this chapter of Lex Aquilia.12
XVIII. PROVISIONS IN FORCE ON CIVIL LIABILITY
The admission of Roman tradition in 1804 on enacting the French Civil Code –called three years later the Napoleonic Code- has been the direct source of civil legislation in Mexico, which naturally made use of the established procedures corresponding to civil liability in the 1870 Code in the Federal District and which now are in force in the 1928 Civil Code in the following precepts:
Article 1910. Whoever by acting unlawfully or against morality damages another, is obligated to redress the damage, unless it is proven that the damage was caused as a result of inexcusable guilt or negligence on the victim’s behalf.
Article 1913. When an individual uses mechanisms, instruments, devices or substances that are dangerous in themselves, because of to the speeds they reach, their explosive or flammable nature, the electric energy they conduct or other similar causes, he is obligated to hold himself liable for the damage he causes even if he does not act unlawfully, unless he proves that the damage was the result of an inexcusable fault or negligence on behalf of the victim.
Article 1914. When there is no use of the mechanisms, instruments, etcetera, referred to in the previous Article, and if damage is caused without guilt or negligence of any one of the parties, each of the parties will bear it with no right to compensation.
Article 1915. The redress of damages must consist of the victim’s choice between the restoration of the previous situation, when possible, or payment for damages and injuries.
Article 2615. Whoever provides professional services is only responsible for the persons he serves, for negligence, lack of skill or intention, without prejudice to the penalties he deserves in case of a crime.
XIX. OTHER JUDGMENTS ABOUT TORTIOUS LIABILITY
Let us review two cases that Mexican jurisprudence dealt with and solved: the case of a mason that climbs to the roof of a building under construction, and suddenly -holding a steel rod vertically in his hands- the rod touches a high tension wire, which was set up very high above the level of said place. A violent electrical discharge ensues, killing the mason. In the legal proceedings, the then Compañía Mexicana de Luz y Fuerza, S. A. [Mexican Light and Energy Company] was sued and then exonerated, attributing the accident to inexcusable guilt or negligence on the victim’s part. However, the Supreme Court of Justice’s verdict acknowledges the existence of risk created by the defendant, when it installed the wire and was sentenced to pay for strict liability.
The other case occurs with a transportation contract signed by a company that entrusted a significant number of boxes containing dynamite to a railroad company. During the trip there is an explosion and the damages inherent to such a blaze. The verdict sentences the carrier to pay for the damages caused, because by accepting the freight it faced strict liability and the tortious liability inherent.
The Spanish expert Felipe Clemente Diego explained that dolus was understood as equivalent to malice, fraud, deceit, bad faith, and that these terms were contrary to guilt, which basically involves negligence. From this it is concluded that dolus was manifest as an intention to damage or as an awareness of inflicting damage on violating the right of a third party. It should be understood that in order to act with dolus the certainty that there was wrongful behavior that causes damage to another is enough, and that often it was not the debtor’s intention to harm the creditor, but the intention of taking advantage of the situation. Therefore, the Spanish expert saw the responsibility resulting from dolus can be payable on demand, without having to law approve a waiver to claim it, because doing so would be the same as permitting both bad faith and fraud in social relationships, which would mean the suppression of the agreement’s surety and the ethical sense of life.13
Article 2025 of the Civil Code in force clearly specifies that, when guilt or negligence takes place: "There is guilt or negligence when the obligor performs acts that go against the preservation of the thing or he stops performing the acts needed for it."
In the transcribed text, the identical generic meaning of both grammatical concepts can be seen. Their specific difference is only found in the result since guilt must be active -in the sense that with this acts against the preservation of the thing are carried out- and in negligence passivity is observed -since it allows the acts needed for its preservation to stop being performed-.
XX. DILEMMAS BETWEEN GUILT AND NEGLIGENCE
About the same aspect mentioned above, it is interesting to substantiate the same concepts previously developed, as found in the obscure interpretation of the words guilt or negligence in the analysis carried out by the Third Chamber of the Mexican Supreme Court of Justice, when with the same criteria it determined the writ of amparo filed by Compañía de Tranvías de México, S. A., published in volume LXXXV of the Weekly Federal Court Report, page 1804, in which it formulates the following statements:
CIVIL LIABILITY OR INEXCUSABLE NEGLIGENCE ON THE VICTIM’S BEHALF, IN THE EVENT OF. Article 2025 of the Civil Code of the Federal District determines the concept "guilt" on establishing that "There is guilt or negligence when the obligor performs acts that go against the preservation of the thing or he stops performing the acts needed for it." It is not true that guilt is always inexcusable, nor does the circumstance that the mentioned Law, in referring to serious guilt, establishes that none can be exonerated from it, support the opposite conclusion, since this does not concern slight or very slight guilt. Negligence means "carelessness", in its first definition; as the word guilt, in its different degrees, is also explained in terms of carelessness, and Valbuena translates guilt as "negligence and the damage it causes." The authors continue with the same method, among which Planiol and Ripert can be quoted. In its limited meaning, that is, omitting harm caused consciously and voluntarily, in the technical juridical language guilt means imprudence or negligence. Besides Articles 1914 and 1936 of said Code, the statement of Article 2025 transcribed above clears all uncertainty, assuming that the same acts determine guilt or negligence, without nuances that make them different. It is inadmissible that the adjective "inexcusable" repeated by the legislator in Articles 1910, 1913 and 1936 of the Civil Law, only refers to negligence, because this is "excusable" and "guilt", repulsive terms, since it is evident that there would be no reason for not admitting guilt as excusable, as opposed to negligence since both are made up of the same elements. The existence of guilt on behalf of the victim is seen according to the same principles of the guilt of the perpetrator of damage and it can or cannot be excusable, according to the circumstances of the specific case, the scrutiny of which corresponds to trial courts.
XXI. SUPPLEMENTARY JURISPRUDENCE
In order to further explain the criteria presented, we think it fitting to transcribe the following three judicial precedents -identified respectively and successively as numbers 1646, 1647 and 1648-, found on pages 2669 and 2670 of the Appendix of the 1917-1988Weekly Federal Court Report:
NON-CONTRACTUAL LIABILITY. As to the liability derived from any unlawful act, with dolus or serious guilt, it cannot be said that this liability is based on breach of contract because these acts go beyond the content and the scope of convention. Someone who intentionally harms another is held responsible for these acts, regardless of there being a contractual link between him and the victim. Whoever incurs in a serious error causing damage that goes beyond breach of contract, such as the death of the passengers on a bus, becomes responsible for this kind of non-contractual liability. Acts that give rise to this type of liability place the originator in the standing as an unknown third party.
STRICT LIABILITY. When one of the contracting parties incurs in non-contractual liability, that is also strict liability because of the use of instruments that are dangerous in themselves, it is clear that the basis of this liability cannot be a contract but the law. Article 1913 of the Civil Code sets forth that someone that uses instruments that are dangerous in themselves is obligated to hold himself liable for the damage he causes even if he does not act unlawfully, unless he proves that the damage was the result of an inexcusable fault or negligence on behalf of the victim. In these cases it is not necessary to appeal to the unlawfulness, dolus or serious guilt of the act to establish that the person who causes damage with said instruments must redress it regardless of being linked to the victim contractually or not. The damaging act is not comprised within the scope of the contract, and any agreement regarding it does not derogate the provisions that govern it.
STRICT LIABILITY. IT IS UNRELATED TO GUILT. In order for compensation for damage caused by the use of dangerous instruments to proceed, neither existence of a crime nor even the execution of a civilly unlawful act is required since the only thing to be proven is that there is damage, as well as the cause and effect. The elements of strict liability are: 1st That a dangerous mechanism is used. 2nd That damage is caused. 3rd That there is cause and effect between the act and the damage, and 4th That there is no inexcusable guilt on behalf of the victim.
XXII. TORTS IN THE SOURCE OF CIVIL LAW
Apart from the comments presented in this paper, we should add that even though our legislation -as we can bear out- is full of a Roman tradition that is very much alive, the issue of tortious or strict liability is not exclusive, because the main consuetudinary source of Anglo-Saxon common law is the one in which the principle of the creation of juridical rule by the Judicial Branch prevails, since this branch has judicial power and authority, when it tries and decides on each of the specific cases filed for a decision. Therefore it has validly assumed the power from its own casuist, so that it incorporates an abundant source of lawsuits that are based on the same principles, which in one way or another are expressed as not fulfilling the behavior set forth in agreements, or that result from committing unlawful acts as a consequence of negligent, imprudent, unskillful, intentional and behavior with dolus, which in the legal language of that historical tradition are called torts. Its meaning comes from the Latin word tortus, which describes what is twisted and from which tortious comes, which means contrary to what is straight. In them there is a non-contractual origin of obligations, consisting of acting with negligent behavior that causes one that brings about strict liability.
Indeed, according to the definition of the terms and phrases of American or English jurisprudence -the old and the modern ones- the Black’s Law Dictionary recognizes that tort means affront -as deduced in the law of the twelve tables- involving behavior that is unjust, lacking legality; that is bad or harmful which violates or injures someone; including the actions executed with bad faith to breach a contract, in which case the court shall provide its solution through the action of damages. In this behavior, violation of an obligation to the harm of the claimant must always exist. This violation is generally given as a consequence of the law itself and not only by an agreement between parties. Within this criterion negligence can correspond because of the non-fulfillment of an obligation that is the responsibility of the defendant.14
As a result of the before mentioned principles, we now point out that in Anglo-Saxon law there is the concept of the so-called foreseeability -translated into Spanish as previsión or habilidad of seeing beforehand or predicting the result of acts or omissions of any behavior-. Since a court ruling, known as stare decisis, which would establish a precedent and become a legally formed law in itself, had not taken place in the legislation of the United States of America, as of 1854 with the Hadley vs. Baxendale case, foreseeability was ruled and won general acknowledgement in the world of common law. It is still the basic rule for that issue.
In the above case, the claimants operated a mill that was stopped by the breakage of a crank shaft. As a result, one of the business’s employees took the broken shaft to the persons who were later sued, so that the shaft would be sent to an engineering company for the purpose of making a new one, using the broken shaft as a model. However, the persons who accepted the obligation to send the broken shaft acted negligently, since, without any excuse they delayed the shipment for several days. As a result of that behavior, the mill was closed and idle for a longer time than it would have if the shipment had been dispatched on time. As a result of the jury’s decision, the verdict was made in favor of the claimant and included payment of damages due to the loss of profits that the mill would have otherwise received. This decision was clearly based on the protective policy of the companies of the then growing Industrial Revolution. When the case was proven, the court established two rules: First. The injured party can recover said damages such as may fairly and reasonably be considered either arising naturally... from such breach of contract itself. Second. The injured party can recover damages such as those both parties would have reasonably contemplated at the time of making the contract, as the probable outcome of its breach. A few days’ delay in shipping a shaft in the ordinary course of business does not have catastrophic consequences. Usually, a shipping delay of certain things means loss of value in terms of its use for the duration of the delay; that is, the value of its revenue. Liability for damages exceeding its value, according to the second rule of the Hadley vs. Baxendale case is only granted if said additional damages had been considered by both parties, as a probable consequence of a breach. As applied in this case and in subsequent ones, this means that said consequences should be foreseeable. Therefore, if the carrier had known the mill had shut down because the shaft was needed and that there was no spare shaft, the carrier would have been held responsible of the resulting damages that arose from the loss of the mill’s profits.
Notes
* Law Department chair head professor of civil and family law and Legal Research Institute researcher at the UNAM [National Autonomous University of Mexico].
1 See Petit, Eugène, Tratado elemental de derecho romano, 9th eEdition, translation by José Ferrández González, Madrid, EditorialPublishing House Saturnino Calleja, page 314 and Floris Margadant, Guillermo, El derecho privado romano como introducción a la cultura jurídica contemporánea, 4th eEdition, Mexico, EditorialPublishing House Esfinge, 1970, pages 304-307.
2 CorroborateCheck this text in Justiniano, Instituciones, Bilingual Edition by M. Ortolán, translation by Francisco Pérez de Anaya and Melquiades Pérez Rivas, Buenos Aires, Bibliographic Omeba, page 236.
3 See Magallón Ibarra, Jorge Mario, Instituciones de derecho civil, t. VI: El Sistema de las obligaciones. Primera parte, Mexico, Porrúa, 1997 and the Preface, page XXVIII; as well as the legaljuridical study into the memory of Eduardo García Máynez: id., La equidad como alma de la justicia, Mexico, Porrúa, 1996, pages 345-355. In this study, where it is affirmed the opinion of the "Macedonian", who identified justice with equity, but pointing outbeing aware that although both are good, the latter is even better, sincebecause being just, just does not mean legal just, but a fortunate rectification of the rigorously legal justice, is corroborated.
4 Magallón Ibarra, Jorge Mario, Instituciones..., op. Cit., note 3, 2nd Edition, 1998, pages 175-194.
5 See ibidem, pages 182-183.
6 See ibidem, pages 183-189.
7 See Petit, Eugène, op. cit, note 1, pages 460-461 and especiallyparticularly Note 1 of paragraph 454 with the translator’s notes of the translator, as well as Magallón Ibarra, Jorge Mario, op. cit., Volume 6th, second part: El sistema de las obligaciones, Mexico, Porrúa, 1998, pages 531-549.
8 Check the formulaestablished procedures mentioned in idem.
9 Corroboratenfirm the established procedureslineaments indicated in ibidem, pages 536-539.
10 Ibidem, page 534.
11 Confirm this criterion in ibidem, page 539.
12 Ibidem, pages 539-541.
13 Instituciones de derecho civil español, volume II: Derecho de obligaciones. Contratos. Derecho de Familia, Madrid, 1959, pages 28-29 and 31-35.
14 Campbell Black, Henry, Black´s Law Dictionary, 6th Edition, St. Paul, Minnesota, The Publisher´s Editorial Staff, West Publishing Co., 1990, page 1489.
