Data

Date:
12-04-2022
Country:
Paraguay
Number:
57
Court:
Tribunal de Apelación en lo Civil y Comercial – Primera Sala
Parties:
José Celestino López Rodríguez et al. v. Sanatorio Migone Battillana S.A. et al.

Keywords

DISPUTE BETWEEN A PARAGUAYAN INDIVIDUAL AND A LOCAL HOSPITAL FOR MEDICAL MALPRACTICE - UNIDROIT PRINCIPLES AS A MEANS OF INTERPRETING OR SUPPLEMENTING APPLICABLE DOMESTIC LAW (PARAGUAYAN LAW)

NOTION OF NON-PERFORMANCE - REFERENCE TO ART. 7.1.1 UNIDROIT PRINCIPLES IN THE ABSENCE OF CLEAR DEFINITION IN THE APPLICABLE LAW

Abstract

Claimants, a Paraguayan couple, filed a claim against a local hospital and a team of doctors (hereinafter Respondents) seeking damages deriving from medical malpractice that resulted in the passing away of their child.

The First Instance Judge rejected the claim. Claimants appealed the decision, but the Appellate Court confirmed the First Instance ruling since Respondents followed the applicable medical procedures when treating the patient and they could not be held liable for damages resulting from the patient’s unfortunate decease.

First, the Court of Appeal affirmed that the claimed damages fall within the category of contractual liability. Therefore, the requirements for granting contractual damages are the non-performance of a contractual obligation, the presence of harm and a causal link between the contractual breach and the injury.

In determining whether there was a contractual non-performance, the Court noted that the Paraguayan Civil Code does not define the notion of non-performance. Therefore, it recurred to national legal scholarship mentioning the Unidroit Principles which provide a definition in Art. 7.1.1.

The Court also noted that the Unidroit Principles include in the notion of non-performance complete failure to perform as well as defective or late performance. In the present dispute, the record shows that it was not a case of total non-performance but rather of defective non-performance, which in any case had not been proven.

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