Product liability in case of medical intervention. Regarding to the judgement of the Madrid Court of First Instance of 21st June 2021

Abstract

The Madrid Court of First Instance had to rule in a prototypical case reminiscent of the thalidomide catastrophe, which gave rise to a number of subsequent judgments in parallel and independent proceedings. The main question was if a patient suffers damage when treated with a toxic product sold by a German company and used in a medical operation in Spain, is Spanish law applicable to the patient’s claim for compensation against the German company’s insurer. In particular, the court had to decide if the claim could be exercised by means of direct action against the insurer, which is only provided in the Spanish legal system and not in the German one.

The judgment of first instance merely applies the lex loci damni provided for in Article 4 (1) of Regulation (EC) No 863/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (hereinafter: Rome II), thus settling the question of the applicable law invoked by the defendant and thus achieving the application of Spanish law.

It is particularly interesting to analyse this panorama, as it shows how current Spanish court ruling resolves intrinsic questions of private international law, such as the relationship of the Rome II Regulation with the Hague Convention of 2 October 1973, the application of Art. 5 Rome II in the case of damage caused by products used in medical interventions and the alternative connection of Art. 18 Rome II, when the regime to which the insurance contract is subject to excludes direct action; questions are ignored or resolved, in my opinion, erroneously or vaguely by the courts.