THE NATIONAL COMMISSION OF MEDICAL ARBITRATION AND THE RESPONSIBILITY OF CIVIL SERVANTS*
Jorge FERNÁNDEZ RUIZ**
Original Text (Spanish) PDF
SUMMARY
I. Concept of civil servant. II. Civil servants of medical attention services. III. The responsibility.
I. CONCEPT OF CIVIL SERVANT
Civil servant can be understood as every physical person, contracted or designated by means of election or appointment, to carry out activities attributed to the State, to its governmental organs or to those of the public administration.
1. In the doctrine
In the universe of civil servants, the doctrine tends to distinguish a public official from an employee; the first one is the chosen physical person, named or contracted in order to occupy a public position whose performance implies the exercise, in the name of the State, of its governmental organs or of the public administration, of functions, activities, faculties or power, of representation, of initiative, of decision, of control; in the opinion of the Argentine professor Rafael Bielsa:
A public official is he who, by virtue of special and legal designation, be it through executive decree, be it through election and in a constant way, under forms and conditions determined in a sphere of competition, constitutes or concurs to constitute and express or to exercise the will of the State, when this will is directed to the realization of a public end, be it a legal or social activity.1
The employee in the service of the State, on the other hand, is the physical person that, by means of appointment, contract or an equivalent mechanism, carries out a position in some of the governmental organs or of the public administration, without relying on faculties or powers of decision or of control, nor representing the organ in which he works.
2. In statute law
In some cases, statute law also refers to the civil servant as a genre, and to the public official and to the employee as species.
A. In the General Constitution of the Republic
In this manner, the fourth title of our fundamental law devotes itself to the responsibilities of the civil servants and establishes in article 108:
For the effects of the responsibilities to which this title alludes, the representatives by popular election will be considered as civil servants, to the members of the federal Judicial power and the Judicial power of the Federal District, to the public officials and employees, and, in general to every person who carries out an employment, position or commission of any nature in the federal public administration or in the Federal District, who will be responsible for the acts or omissions in which they incur the performance of their respective functions.
Article 8 of the Constitution distinguishes also among public official and public employee, by imposing on both the obligation to respect the right of petition, while articles 74, paragraph V; 109, paragraphs I, II and III; 110, 112, 113, 114, 127 and 134 of the General Constitution of the Republic, refer, without distinctions, to the category of civil servant.
Some state Constitutions in particular, such as that of Querétaro, similar to those of the General Constitution of the Republic, distinguish between public officials and public employees, as species of the category of civil servant; on the other hand, others, such as that of Durango, refer to civil servants, without differentiating between public officials and employees.
The generic expression of civil servant is used, without making a specific distinction between public officials and employees, both in the Federal Law of Responsibilities of Civil servants and in the Civil (article 1927) and Penal (tenth title) Codes for the Federal District in the matter of common jurisdiction, and for the whole Republic in the matter of federal jurisdiction.
The local laws of the responsibilities of civil servants tend to also employ the generic expression of civil servant, as it happens with the State of Nayarit.
II. CIVIL SERVANTS OF MEDICAL ATTENTION SERVICES
1. The delimitation of its universe
In light of the third title of the General Law of Health, we consider that the universe of civil servants of medical attention services is constituted by those who take part in the rendering of public services of this nature to the population in general and to the claimants of public institutions of social security, or those who with their own resources or by order of the federal Executive Power give the same institutions to other user groups.
2. Classification
Without considering either public officials nor administrative civil servants and those of intendancy, in the terms of the fourth title of the General Law of Health, the human resources for health services integrate themselves with professionals, technical personnel and assistants of the health professions and, somehow, they complement each other with the students of such professions, who give their social service, for which reason the civil servants of medical attention might qualify in the following way:
Are the civil servants who take part in the presentation of medical attention services, legally authorized for the exercise of professional activities in the areas of medicine, orthodontics, veterinary practice, biology, bacteriology, infirmary, social work, chemistry, psychology, sanitary engineering, nutrition, pathology and its branches.
B. Technical personnel and assistants
Are the civil servants who also take part in the presentation of the above-mentioned services of medical attention, among other fields, those of medicine, orthodontics, veterinary, infirmary, clinical laboratory, radiology, physical therapy, occupational therapy, speech therapy, prostheses and orthesis, social work, nutrition, cytotechnology, pathology, pharmacology and histopathology, previous accreditation of the specific knowledge required in every case, by means of the respective diplomas legally issued by the corresponding educational authorities.
III. THE RESPONSIBILITY
The Castilian voice 'responsibility' comes from the Latin respondere which means: to be obligated.
1. Concept
Among the many concepts formulated in this matter, responsibility is understood as the capacity of a subject of the law to know and to accept the consequences of his realized acts consciously and freely. In another sense, it is the relation of existing causality between the act and its author, that is, the capacity to answer for his acts. In a more concrete sense, responsibility is translated as the emergence of an obligation or the merit of a sentence in a certain or determinable case, as a result of the execution of a specific act.
Responsibility can also be understood as the obligation that a person has of repairing the produced damage, or the harm caused to a third one, because if a law arranges it, an original convention requires it, a contract stipulates it, or if it is separated from certain occurred acts, independently of whether or not within them exists guilt of the one obligated to repair.
2. Juridical responsibility
Juridical responsibility submits acts to the juridical reaction in front of the harm produced, a reaction whose purpose consistent in the repression of the evil caused is reached by means of the law, through the transfer of the charge of damage to a subject different from the aggrieved party; such a different subject will suffer -with, without and even against his will- the above-mentioned juridical reaction, by being in a situation of responsibility.
3. Types of juridical responsibility
When they take offence or put the foundations that sustain the society at risk, this one reacts by means of punishment that it imposes on who realized such attempts, if those undue conducts are deliberated, that is to say, if the authors are penally responsible; therefore, the penal responsibility claims to investigate the guiltiness of the antisocial agent, or at least to verify the socially dangerous character that said subject or his acts can mean, in order to impose sentences or adopt safety measures in opposition to who, responsible or not, put it in danger and, in every case, to facilitate rehabilitation and rehabilitation of such persons.
Civil responsibility, unlike the penal one, does not have as a starting point a social harm, but an evil inflicted on an individual or on several respectively, yet since centuries ago the harmed one cannot apply a punishment to the author of the above-mentioned evil; it should be limited to soliciting, before the competent courts, the repair of the harm or damage caused.
In contrast with the penal responsibility, whose verification demands the investigation of the imputableness of the author of the harm, or at least the accreditation of the socially dangerous character that said person or his acts can mean, in the civil responsibility there is little relevancy that the pernicious act for an individual places or not the interests of society at risk, nor if the author of the harm has imputableness or not, since the only thing that is needed is to determine if a juridical nexus of obligation exists between two subjects that can be converted one into a creditor and the other one into a debtor.
Administrative responsibility is attributed exclusively to civil servants, for infringing with acts or omissions the principles that govern the public occupation, which, in the terms of article 47 of the Federal Law of the Responsibilities of Civil servants, are those of legality, honesty, loyalty, impartiality and efficiency.
Political responsibility, as the administrative one, only is attributable to the civil servants -but not to all- rather, only to some types of public officials that constitutional article 110 specifies when their conduct injures the fundamental public interests or those of their good exercise.
Professional responsibility only is attributable to professionals, who besides responding for their own acts in the terms established in article 1910 of the Civil Code and in 228 of the Penal Code, will do it also for the acts of the assistants or employees who are under their immediate dependence and direction, if their instructions cause harm or if they do not give suitable instructions.
It is useful to emphasize that each of the different types of responsibility does not exclude the others; the murderer, for example, besides his penal responsibility, is civilly responsible for the harm inflicted upon the children of his victim; for this reason the sentence that is imposed upon him for the commission of the crime, does not liberate him from repairing the damages derived from the orphanage in which the younger children of the victim remained.
4. The responsibility of civil servants
In the performance of their functions, civil servants can incur in penal, civil, administrative, professional and political responsibility.
This type of responsibility is anticipated in the tenth and tenth first title of the second book of the Penal Code for the Federal District in the matter of common jurisdiction, and for the whole Republic in the matter of federal jurisdiction; these articles determine what the following crimes consist of: undue exercise of public service, abuse of authority, coalition of civil servants, undue use of attributions and powers, concussion, intimidation, abusive exercise of functions, traffic of influence, bribe, graft, illicit enrichment, just as those done by the civil servants against the administration of justice.
For a few authors, civil responsibility is the sanction to an undue conduct, as it was understood in the first stages of the law, in which the response to harm was of an afflictive and penal nature; it is the scheme of the "law of retaliation" that -of the reprisal inflicted on the convict- is transformed into pecuniary compensation with an afflictive purpose and not remunerative, by means of the criterion of the multiple one, which generated an abundant utility to the person harmed.
In Roman law, the idea of responsibility is modified drastically when orienting itself to reestablishing the exact balance among the members of the community, broken by an unjust situation, for which the repair was not generated by the absence, but the lesion. Because of this, as Eduardo Soto Kloss indicates, in Roman interpretation:
The foundation, the cause of the obligation to repair is not the existence of an absence, of a fault, of malice, in the author of the harm, but rather the imbalance produced in the relations of men; unjust imbalance, damage, perturbation of an equality that is necessary to protect, and because of this, necessity to repair that one, altered by that damage contrary to that equality (aequalitas).2
According to the criterion of another doctrinaire current that can be considered to be predominant at present, civil responsibility has a reparatory purpose and, therefore, it seeks to guarantee the juridical sphere of the subjects of the law, with the intention of restoring the patrimonial situation of the victim of the anti-juridical harm. In consequence, the indemnification will be proportional to the damage suffered.
In this other scheme, civil responsibility lacks a punitive or afflictive character for being indisputably reparatory, and in consequence, it is not destined to enrich the victim or his relatives. In this order of ideas, article 1910 of the Civil Code for the Federal District establishes: "He who labors unlawfully or against good customs and causes damage to another is forced to repair it, unless he demonstrates that the harm was produced as a consequence of culpability or inexcusable negligence of the victim".
We could then indicate that civil responsibility of the civil servant is derivative of his acts or omissions registered in the exercise of his functions, which cause economic or moral harm to another person.
C. Administrative responsibility
Article 47 of the Federal Law of the Responsibilities of Civil Servants contains in its 24 paragraphs the whole catalogue of obligations for such servants, whose no fulfillment causes to impose upon them administrative sanctions foreseen in article 53 of the same legal regulation, which are those of private or public warning, private or public admonition, suspension, dismissal of the position, economic sanction and temporary incapacitation to perform employments, charges or commissions in the public service.
D. Professional responsibility
The civil servants, whose performance of labors implies the exercise of a profession, can incur professional responsibility cases specifically foreseen in the Penal Code, in the Law of Professions and the General Law of Health.
According to the content of article 228 of the Penal Code, professionals and technical personnel just as their assistants, will be responsible in the exercise of their profession, and, besides the sanctions to which they become creditors in each case, will be able to be suspended in such an exercise of one month to two years, or in a definite way in case of reoccurrence; remaining obligated to repair the harm by their own acts and by those of their assistants, when these act in accordance with the instructions of those. Such a disposition is applicable to the doctors who, having granted informed consent to take charge of the care of an injured or sick person, they abandon him in his treatment without a valid reason and without giving immediate notice to the competent authority.
b. Regulation Law of Constitutional article 5, relative to the exercise of the professions in the Federal District
In its article 71, this legal classification arranges that the professionals will be civilly responsible for the contraventions that they commit in the performance of professional labors; the assistants or employees who are under their immediate dependence and direction, providing that they had not given the suitable instructions or their instructions would have been the reason for the harm.
This law imposes onto professionals, technicians and medical assistants, diverse obligations whose nonobservance gives occasion for the sanctions foreseen in chapter II of the eighteenth title. For example, article 419 disposes to sanction with a fine equivalent of up to one hundred times the general minimal daily salary in force in that particular economic zone, the doctor who, without the consent of the patient, or of those whom article 103 indicates as in the same classification, granted in writing, uses new therapeutic resources or of diagnosis in the treatment of the disease.
5. Civil responsibility of Civil Servants in the health sector
Special relevancy for the civil servants in the health sector represents the civil responsibility from which one tends to admit as elements: an illicit performance, the existence of a harm, and a link of causality between the occurrence and the harm.
A. The illicit performance
It is considered that the illicit performance implies a fraudulent act or at least a guilty one, be it because of its intention of causing harm, or because of being a product of imprudence, negligence, ignorance, inadvertency or lack of skill; for whose reason constitutes an indispensable element of civil responsibility.
Characterized by its premeditation and by its unlawfulness, deceit needs -as for the first one- two elements, the intellectual one and the volitional one. By the intellectual one, the author of the deceit has knowledge of the act or of the omission that he carries out in contravention to his obligation, and of the consequences that he transports. By means of the volitional element, the author has resolved to voluntarily not fulfill his duty, his obligation.
In consequence, he who acts fraudulently with the knowledge of having a specific obligation in his position does not fulfill it in a deliberated and voluntary way.
Located next to the fraudulent acting, the culpable acting is understood as that action in which neither deceit nor bad faith exists, but it gives itself the predictability of the caused harm, by which guiltiness is located among deceit and fortuitous case; because it is possible to understand guiltiness as the no fulfillment of an obligation without deceit or bad faith, or for some predictable and avoidable reason, also, the action or omission that because of imprudence, ignorance, lack of skill, or negligence, causes harm to another. For Guillermo Cabanellas:
In a strict sense, guiltiness is equivalent to a lack of diligence, since every person is obligated to act with prudence and with full knowledge of things. Guiltiness can be in faciendo or in omitiendo, that is, by action or omission. The Romans distinguished three cases of guiltiness: a) lata, when diligence is not used that all men, even the least careful, tend to place in his things or in his business; b) leve, when the attention or care that is ordinarily accustomed is not given, or that, in general, a good father of family would give; c) levísima, when one does not place the diligence that a vigilant and cautious person would place.3
The second element of civil responsibility is the harm suffered by a person, which refers not only to the damage registered by the harmed one in his patrimony or emergent harm, but also to the harm that prevents perceiving the legitimate utilities, that is, the dismissed lucre; and to the harm inflicted upon values not quantifiable in money, in which case one speaks about moral harm.
Inside The generic concept of patrimonial harm is distinguished, in the first term of the harm emergent, consisting of the damage or reduction registered in the patrimony of who suffers it, caused by its destruction, annihilation, deterioration or privation of its authority, use or enjoyment, be it for the expenditures that with such motives the victim is seen needing to carry out.
According to article 1614 of the Civil Code of Colombia, "it is understood that for an emergent harm, prejudice or loss that comes from not having fulfilled the obligation or from having been fulfilled imperfectly, or from its fulfillment having been retarded".
Inside the patrimonial harm, is also distinguished the profit out of a job, consisting of the legitimate profit that is no longer perceived as a result of the illicit action.
When the harm refers to certain values not appraised in money, one is in the habit of naming moral harm, since it happens in the harm caused to the victim in his health, in his corporal integrity, in his freedom, in his physical aspect, in his honor, or in his reputation. For Rodrigo A. Escobar Gil: "The moral damages are not pure patrimonial damages; they affect interests that for lack of economic immediate content, as the rights of a personality (the life, physical integrity, honor, etc.), of the family, of the interests of affection and of the transcendent elements of the life of relation".4
C. The causal link among the occurrence and the harm
The obligation to repair or to indemnify the damages and prejudices, or the civil responsibility, can have its origin in a contract, in which case one speaks about contractual responsibility; or it can be a question of extra-contractual responsibility as the cases derived from a unilateral statement of will, of the illegitimate enrichment, of the business management, of a lawful fact, of a crime or of a legal mandate. In the first case, one speaks about civil contractual responsibility; in the remaining ones of civil contractual extra-responsibility.
D. The civil responsibility of doctors and paramedics of the sector
Undoubtedly, of the civil servants of the health sector, most exposed to receive claims of responsibility, especially of civil character, are the doctors and paramedics; many of the claims are attributed to iatrogenia.
Understood as the disease caused by the doctor or as the unwanted effect, avoidable if the doctor will have the knowledge of a specialty and will act carefully and prudently, the iatrogenia is, in effect, one of the important sources of responsibility of professionalism, technical and auxiliary of the health sector, which, as Harrison suggests, owes to recklessness, negligence, ignorance and, we would add, to a lack of skill.
Imprudence can be interpreted as the absence of discretion, sanity and moderation in the action, or the carelessness in the attention needed for the accomplishment of the actions and in the forecast of their consequences.
Recklessness or lack of prudence can cause damages in the persons and in the things which demand repair and indemnification of the civil responsibility that they bear, always and when a damage or prejudice takes place, without deceit or bad faith, without the sanity and moderation adapted, and that does not constitute a crime, even when it can be an administrative mistake.
Legally, negligence can be interpreted as lacking the due diligence or the indispensable care in the execution of a certain act. Therefore, negligence is equivalent to carelessness.
The ignorance of some fact, thing, skill, or officiate especially, it implies specific ignorance; to it, the statute law refers to a culpable act of unjustified ignorance, since it is that of the professional respect of his own matters of his profession or specialty. In this respect, article 355 of the Penal Spanish Code establishes a criminal figure recounted to the judge who will pronounce a manifestly unjust sentence for negligence or inexcusable ignorance.
Certainly, the specific ignorance not only can provoke the configuration of a crime, but also gives civil responsibility a place for professionals, when his performance manifests the ignorance of fundamental principles of the profession or specialty to which they devote themselves. Ignorance differs from a miscalculation in which the professional can incur, not because of ignorance of the fundamental principles of his specialty, but because of a poor or incorrect interpretation or application of such principles.
The lack of skill represents, in our opinion, a culpable act, different from one provoked out of ignorance, because even when it can be provoked, that is to say, by the lack of wisdom or of special knowledge in a matter, it can also be a product of the lack of aptitude, skill, experience or practice of a science or art.
6. Direct and joint responsibility of the State
For centuries the idea of the absolute irresponsibility of the State was prominent, being intimately tied to the authoritarianism typical of the former regime, based on the idea of the commanding season of sovereignty, understood as an all-embracing and absolute power that God delivered to the monarch, who fortunately was identified totally with the State, which moves François Senault to affirm, "The king is the State", inspiring Luis XIV to affirm later that "I am the State". As Julio I. Altamira Gigena points out:
Sovereignty is understood as the all-embracing, absolute power of the State, capable of being exercised without conditions or limitations, and compared to his concept of the legal notion of empire, that supposes the right to impose his will on others and the duty of these of respecting him, explains to himself that should not can coexist his idea of a "responsible State", obliged to repair the prejudice inferred by his employees or personnel.5
The emergence of the constitutional state and of the principle of legality that it bears, allowed the admission of the idea of the responsibility of the State, whose importance emphasizes the judgment of the Supreme Spanish Court, in its judgment of November 16, 1983, having said:
…it is appropriate not to forget that the enthronement of the civil responsibility of the public administration, especially that of the State, has represented the maximum conquest, in the configuration of the modern constitutional state, since up until recently, contemporary dates, the sovereign entities' own was that imposing itself on all, without compensation.
The professor, Agustín A. Gordillo denies, deservedly, in our opinion, the applicability of criteria and principles of civil law as the responsibility of the State, for this he affirms:
This is called still, at times, civil responsibility of the State, but it is a euphemism, because it neither is a question of the classic "responsibility" of the private right, nor is it "civil" in the sense of being ruled by the procedure of the above-mentioned Code (these procedures are invoked, but with constant modification, in consideration of the principles of public law, which already render inaccurate that which we pruned to speak in rigor of "civil responsibility"). At most it could be called in this way to indicate that it is a type of responsibility that is translated in a pecuniary repair; this is, in an indemnification of the damages and prejudices caused by the action of the State.6
7. The responsibility of the Mexican State
In Mexico, the unrestricted irresponsibility of the State was in force until 1928, the year in which the new Civil Code was sent, still in effect for the Federal District in common matter and for the whole Republic in federal matter. Up until the expedition of the above-mentioned classification, the Mexican state was answering the resultant damages of acts not coming from either of its organs of power nor form its employees or civil servants in the exercise of its functions.
In consequence, the ones who were turning out to be damaged by acts conducted by civil servants did not have another way to try to indemnify the received damages that to sue in the personal the agent of the public power, author of the respective act, frequently endorsed in an undue way by those entrusted to manage justice.
The practice demonstrated that of few cases in which the affected one managed to conquer in reason, in a high percentage, met the insolvency of the civil servant defeated, which made his favorable judgment nugatory.
A. The responsibility of the State in the Civil Code of 1928
Was the above-mentioned Civil Code of 1928 the one that, precisely in article 1928, introduced in Mexico, though shyly, the responsibility of the State for the undue performance of its servants, to establish:
The State has the obligation to answer of give us caused by its employees in the exercise of the functions that are entrusted them. This responsibility is subsidiary, and it will only be able to become effective against the State when the directly responsible employee does not have goods, or those that he has are not sufficient to answer the caused harm.
Since it jumps at sight, the recognition of the responsibility of the State was of modest scope, although, on the one hand, it included neither the prejudices nor the moral harm, and, on the other hand, its subsidiary character was affectedly forcing the promotion of two successive judgments, the first one to sue the responsible civil servant and, in case of obtaining favorable judgment and to justify to himself the insolvency of the defendant, to initiate new legal claim, this time in opposition to the State generally overprotected for the person judging.
In few cases in which the affected one was managing to obtain the favorable resolutions in as complicated a jurisdictional procedure, it was thought that the insurmountable obstacle of the lack of budget was preventing realizing the respective payment.
In 1982, a significant advance was given to extend the subsidiary responsibility of the State to it in indemnifying the moral harm, by means of the reform of article 1916 of the above-mentioned legal classification, which it arranged: "By moral harm it is understood the affectation that a person suffers in his feelings, physical affections, beliefs, propriety, honor, reputation, private life, configuration and physical appearance, or in the consideration that of others have of him".
When a fact or a lawful omission produces a moral harm, the person in charge of the same will have the obligation to repair it by means of an indemnification in money, with independence of which property damage has been caused, so much in contractual responsibility, as extra-contractual responsibility. He who incurs objective responsibility will have, in conformity with article 1913, as well as the State and its employees, in conformity with article 1928, both dispositions of the present Code.
The VIII Congress of the United Nations for the Prevention of Crime and Treatment of Delinquency, realized in Milan in November, 1985, expressed the "Declaration on the Fundamental Principles of Justice for the Victims of Crimes and Abuses of Power", in which the concept of "victim of the abuse of power" is developed, according to:
18. It will be understood as "victims" the persons who, individually or collectively, have suffered damages, including physical or mental injuries, emotional suffering, financial loss or substantial damage of his/her fundamental rights, as consequence of actions or omissions that do not manage to constitute violations of the national criminal law, but that violate an internationally recognized procedure relative to the human rights.
19. The States will consider the possibility of incorporating into the national legislation a procedure in which they proscribe the abuses of power and in which they provide remedies to the victims of these abuses. Especially, these remedies will include the medical, psychological and social material necessary for indemnity and the indemnification, as well as the assistance and support.
In light of this victim's new concept of the abuse of power, and in exercise of the power that the fraction VIII of the article 6. Of the law that created it, the National Commission of Human Rights proposed to the federal Executive Power a package of reforms to diverse legal classifications, which the President of the Republic did, having sent the initiative of reforms corresponding to the Congress of the Union that approved it in the essential thing, the corresponding publication being done in the Diario Oficial de la Federación of January 10, 1994.
Mercy to such a reform, the State assumes, in a direct and joint way, the responsibility derived from the damages, both material and moral ones, caused fraudulently by agents or representatives; such a responsibility includes the payment of prejudices; the moral harm is presumed if the accomplishment of the act is proved lawful by means of which it is caused, even when the harm itself is not proved; the obligation is established to assign a budget item in order to face such a responsibility; the legal mechanisms simplify and extend to achieve the payment of indemnifications for harms derived from lawful performances of civil servants, being able to proclaim by means of the ombudsman.
In the package of reforms published on January 10, 1994, the relative ones stand out to the following legal classifications:
a. Civil Code for the Federal District and for the whole Republic in Federal Matter
Article 1916. By moral harm it is understood as the affectation that a person suffers in his feelings, affections, beliefs, propriety, honor, reputation, private life, configuration and physical appearance, or in the same consideration that they have for others. It will be presumed that there was moral harm when it damages or reduces legitimately the freedom or the physical or psychic integrity of the persons.
When a lawful occurrence or omission produces a moral harm, the person in charge of the same will have the obligation to repair it by means of an indemnification in money, with independence of which property damage has been caused, so much in contractual responsibility, as extra-contractual responsibility, equal obligation to repair the moral harm will have he who incurs objective responsibility in conformity with article 1913, as well as the State and its civil servants, in conformity with articles 1927 and 1928, all of them of the present Code.
Article 1927. The State has the obligation to answer for the payment of damages and prejudices caused by its civil servants on the occasion of the exercise of the attributions that are entrusted them. This responsibility will be joint treating itself for illicit fraudulent acts, and subsidiary in other cases, in which it will only be able to become effective in opposition to the State, when the directly responsible civil servant does not have goods or those that he has are not sufficient to answer for the damages and prejudices caused by its civil servants.
Article 1928. The one who pays the damages and harms caused by his servants, employees, public officials and workmen can demand from what he should have paid.
b. Federal Law of the Responsibilities of Civil Servants
Article 77 bis. When in the administrative disciplinary procedure, the responsibility of the civil servant has been decided, and the administrative mistake has caused damages and prejudices to individuals, these will be able to come to the dependencies, entities or to the Secretariat of the Controllership of the Federation in order that they directly recognize the responsibility of indemnifying the repair of the harm in liquid quantity, and in consequence, of indemnifying the corresponding payment, without need of the individuals coming to the legal authority nor to any other.
The State will be able to repeat of the civil servants the payment of the indemnification made by the individuals.
If the organ of the State denies the indemnification, or if the amount does not satisfy the claimant, the administrative or judicial route will be issued.
When a recommendation of the National Commission of Human Rights has been accepted in which one proposes the repair of damages and prejudices, the competent authority will limit himself to the determination in liquid quantity and the respective authorization of payment.
Article 78. The powers of the hierarchic Superior and of the Secretariat to impose the sanctions that this Law will foresee will be subject to the following:
III. The right of the individuals to request the indemnification of damages and prejudices will expire in one year, from the notification of the administrative resolution that the administrative mistake has declared committed.
c. Law of the Court of the Administrative Contention of the Federal District
Article 21. The tribunals of the Court of the Administrative Contention of the Federal District are competent to know:
VII. The resolutions that are dictated denying the individuals the indemnification to which article 77 bis is contracted of the Federal Law of the Responsibilities of Civil Servants. The individual will be able to choose this route, or will be able to come before the competent legal authority.
d. Organic Law of the Fiscal Court of the Federation
Disposition similar to the one previously transcribed of the Law of the Court of the Administrative Contention is contained in paragraph X of article 23 of the Organic Law of the Fiscal Court of the Federation.
e. Federal Law for Preventing and Sanctioning Torture
"Article 10. The State will be obliged to repair the damages and prejudices in the terms of articles 1927 and 1928 of the Civil Code".
f. Law of the Budget, Accounting and Federal Public Expenditure
"Article 2. The federal public expenditure includes the expenditures for the concept of current expenditure, physical investment, financial investment, as well as payments of passively, and for the concept of patrimonial responsibility, which they realize".
Evidently, it is of great importance that you reform similar to them before transcribed they remove to end in the legal classifications of all the states of the Republic, in order that the direct responsibility of the State demands of the whole country, as well as in the local area, at least dealing with intentional or fraudulent conducts of civil servants of the states and municipalities, in conformity with the "Declaration on the Fundamental Principles of Justice for the Victims of Crimes and Abuses of Power", for a greater respect for human rights.
8. The National Commission of Medical Arbitration, opposite
to the responsibility of civil servants of the health sector
The most important and transcendental step in the task of explaining with equity the responsibility of professionals, technical personnel and auxiliary of the professions in the public health sector, came to be the creation of the National Commission of Medical Arbitration, as an non-concentrated organ of the Secretary of Health, with full technical autonomy to express its opinions, agreements and awards, whose attributions form them toward investigating and attending to the complaints that the users of medical services present for the possible irregularity in its presentation or for the denial of its presentation of such services; to act as an amicable composer in conflicts derived from its presentation, for acts or omissions in such an activity or for negligence with the consequence being the health of the user; to act as arbitrator, and the awards declared that correspond when the parties submit specifically and voluntarily to its arbitration; to express opinions about the complaints that proceed, and the to elaborate the judgments or medical expert's reports requested by the authorities in charge of the care and imparting justice.
One should hope that the exercise of its attributions allows this new institution to opportunely establish the modification of its juridical frame that its favorable evolution and perfecting propitiate in benefit of the users of health services, especially of the ones imparted by the public sector.
Notes
* Translated by Diana Hernández Holtzman.
** Researcher of the Legal Research Institute.
1 Bielsa, Rafael, Derecho administrativo, Buenos Aires, Roque de Palma, t. III, pp. 263 and 269.
2 Soto Kloss, Eduardo, "La responsabilidad pública: enfoque político", Responsabilidad del Estado, Tucumán, Unsta, 1982, p. 21.
3 Cabanellas, Guillermo, "Culpa", Diccionario de Derecho Usual, 6th ed., Buenos Aires, Omeba Bibliography, 1968, t. I, p. 561.
4 Escobar Gil, Rodrigo A., Responsabilidad contractual de la administración pública, Bogotá, Temis, 1989, p. 240.
5 Altamira Gigena, Julio I., Responsabilidad del Estado, Buenos Aires, Astrea, 1973, p. 42.
6 Gordillo, Agustín A., Tratado de derecho administrativo, Buenos Aires, Ediciones Macchi, 1980, t. II, chapter XX, p. 5.
