21.2 - RESARCIMIENTO DE LOS GASTOS DE ASISTENCIA SANITARIA FUTURA EN EL ÁMBITO HOSPITALARIO Y AMBULATORIO (parte 2). ARTÍCULO 114 del Baremo

Desmontando el baremo con Mariano Medina se trata de entrevistas de Manuel Castellanos con nuestro asociado de honor, el maestro Medina Crespo, donde dará una visión descriptiva y crítica del actual baremo de valoración de daño corporal en accidentes de circulación para su aprovechamiento en los asuntos profesionales de los abogados especializados en la materia.

Puedes consultar más información en https://anavarc.org/.

Una producción de Loupod (www.loupod.es).

Episode Transcript

(00:00):
You are listening to a production ofLoupod welcome dismounting the scale with Mariano Medina,

(00:23):
a training podcast of anaba RC,National Association of Accident Victims Lawyers,
and presented by Manuel Castellanos lawyer,aimed at professionals who have to use the
assessment scale of bodily damage of theyear two thousand fifteen to determine the compensations
to which victims of accidents are entitled. Best regards. We have a new

(00:49):
chapter of our Nava podcast in thecompany of Mariano Medina. How about,
Mariano, we are those of alwaysManuel Castellanos, who leads this small program
that we try to make it,because pieces or pills of about thirty minutes,
where we go down, where wedismount and where Mariano, above all,

(01:15):
explains his interpretation of the scalem asteacher of all of us in all
this in this manual, or weevaluate the body year. In the last
chapter we are talking about the foreseeablecosts of this future sanity assistance from Article
one hundred and thirteen, which continueswith Article one hundred and fourteen, which

(01:36):
is compensation for the costs of futurehealthcare in the ambulatory and hospital environment.
The article speaks of the costs offuture health insistence will be in love by
the institutions insured to the public healthservices in accordance with the legislation in force
and the agreements or agreements signed.Within the limits set out in table two

(01:56):
c one and the injured P mayreceive the provision of health care by public
institutions or by private health centres thathave entered into concerts with public health services,
also in accordance with the provisions ofthe said legislation and agreements. The
one hundred and fourteen remain at numbertwo, in which it stipulates that insurance

(02:19):
institutions and public health services may concludespecific agreements in order to facilitate the payment
referred to in the preceding paragraph andto guarantee health benefits to the injured.
In turn, public services will beable to arrange future health care with private
centres that have the necessary material andhuman resources to provide it. This article

(02:44):
ends in its number three, whichstates that insurers shall pay the public health
services the costs of guaranteeing future healthcare, even in the event of a
temporary or defined transfer of residence orother circumstances which may entail a change of
care centre within the framework of thebenefit scheme provided for in Law Sixteen Varra

(03:07):
two thousand three, of twenty-eight years of cohesion and quality of the
national health system. If you giveus time, then we will comment on
a recent sentence. I do notknow if you have seen it in the
press, because the barrier of threemillion euros has been overcome in the inhibization

(03:27):
of a single victim hit by anaccident in the year two thousand and sixteen.
The judgments of 19 March of thetwenty- four thousand and well,
one can comment on many aspects thissentence, but one very curious one is
that, precisely the judge of thegame of the criminal thing establishes an inhimization
in favor of the head office,in favor of public health service in the

(03:53):
amount of three hundred fourteen thousand sevenhundred seventy- six with fifty- eight
euros, and that it breaks downin the sentence itself and that it will
give us reason to comment if itis true that the insurance company takes care
of these payments to the head office. Therefore, because the microphone is your
Marian, because we will leave alittle article one hundred and fourteen as a

(04:15):
complement to what we talked about inthe other session of the foreseeable expenses of
the future holiness assistance of article onehundred and thirteen. Well, I suffered
when you read the article hundreds fourteen. And I have suffered when you have
read article one hundred and fourteen,because reading article one hundred and fourteen amounts
to reading a clause of an insurancecontract, because it is a mess,

(04:38):
it is a gibberish the expressions ofthe assumptions it establishes. It seems written
by an insurer, and I thinkit' s not that it seems,
is that it has to be writtenby an insurer of those who give you
the clauses of insurance contracts. Well, by linking this article to the previous

(04:59):
one, we saw in a previoussession the problem raised by Article one hundred
and thirteen, where we saw thatthe article started beautifully to the point that
it is an article that is partof its paragraph. He has first read
it up to the first chamber ofthe Supreme Court and the three judgements until

(05:21):
the first of the Supreme Tribal toresolve cases submitted to the regime of the
year two thousand and seven, ofthe tidal period of ninety- five,
i e in cases where compensation forfuture medical expenses, i e of the
producers after the injury stabilization, wasexcluded, resolving those lawsuits in the sense

(05:46):
that compensation does not proceed because thelaw forbids it. Accidents are subject to
the previous scheme. Instead, theywelcome the coming future, because they say
that this has been amended. Thatprohibition of resurveillance has been amended by the
legislator with the scale of two thousandfifteen and is really an optimistic expression of

(06:06):
the first chamber of the supreme themain three sentences, because they do not
have to fail or resolve. Underthis article, it is well understood that
the judges did not read it inits entirety either, and that the heading
of foreseeable future medical assistance costs hasbeen read. They have read section one

(06:33):
where it is said that future medicalexpenses will be destroyed, thus, as
before, it was forbidden to compensatethem for being futures. And now,
on the other hand, says therule that compensation for future medical expenses will
be regulated. For they express theirpositive sense of interpretation of the precept before

(06:56):
what is the scale of two thousandand fifteen. But of course, when
you read all the one hundred andthirteen and then read the one hundred and
fourteen that you' ve already readto us. Right now, then,
find one with which the thing isnot so clear. Read paragraph one.
When you move on to the othersections, you find that there are no
longer all the future medical expenses,but only determined by these future doctors,

(07:23):
with the distinctions of paragraphs two,three and four and five, which I
believe we saw in the previous session. Therefore, passing one hundred and fourteen,
it is when the enormous surprise comes, because when reading the one hundred
and fourteen, reading section one ofthe one hundred and fourteen, suddenly one

(07:46):
realizes that in the one hundred andthirteen he has not appeared mentioned the victim.
As legitimate as it gives to becompensated for the medical expenses to be
faced in the future. Do notbe alarmed in the one hundred and thirteen
because the one hundred and fourteen comes, but yes, you are alarmed when
you read the one hundred and fourteenand you find that, according to him,

(08:11):
the only recipients of this reparation arepublic health services and the norm does
not say so, but yes,in an unconditioned way. Future medical expenses
which are provided as compensable for theone hundred and thirteen. Only these have
to be paid to public health services. The first thing to be missed is

(08:33):
that a clarification which seems elementary isthat it must be paid to the public
health services to the extent that theyassume to provide these future health care,
because if the relevant public health serviceis not to assume, it does not

(08:54):
have to provide such future medical carewithout meaning that it is receiving the compensation
provided by law and at the previoussession we mentioned the Navarra judgment, which
was the first single judgment that Iknew at the time in which the matter
was specifically dealt with in order toresolve it in the sense that future medical

(09:18):
expenses of an injured woman who hadto move to live with her parents to
Sweden and, therefore, was notgoing to be assisted in the future by
the public health services. Instead ofgiving compensation to the public health service in
Andalusia, where he had his residence, he was recognized for the injury himself

(09:39):
to pay in Sweden. It cannotbe provided The clear rule, the public
health service, Sweden is not included. It does not seem easy that the
public health service is so beneficial thatit receives a South American immigrant from Spain

(10:00):
and will pay her already. I' m telling you, it doesn'
t, because it doesn' t, at least in America. Then,
the second sentence I have known,which is what Manuel has mentioned, because
we will comment on it because itis interesting, because it is a very
good complement to the things we saidin the previous session, with the one

(10:20):
hundred and thirteen ravés current, whichcomplements what you spoke the other day.
And all right. And, well, the reason is that I, in
that position, are going to seehim now. In that case I had
not thought, but in turn Ihave not been surprised once I have known
not only the sentence I have read, not in depth, but in the

(10:41):
part corresponding to the solution of thefuture enrico gestures, especially because I have
had the opportunity to hear the appealthat the insurer. The insurance company'
s appeal against this judgment has beenbrought against this concept. The convicted insurer

(11:01):
is shocked to be convicted of payingthe future medical expenses of an injured person
and to have to pay them tothe public health service. That is the
surprising thing, because I am notsurprised that in the case of Navarre,
the insurer has appealed. In cassationis the matter pending resolution. I even

(11:28):
believe that the appeal in this casehas not yet been accepted. What the
sentence does literally is ignore the letterof the law and, instead of giving
it to a public health service,it recognizes it to the victim himself who
goes to Sweden, then it isunderstood that the insurer says hear you are
not applying the law well, becausethe law says that you have to give

(11:50):
it to the public service and health. And if you give it to this
lady, it turns out she's breaking the law. What I don
' t want is to pay and, therefore, as I don' t
want to pay to give the resourceand free myself from the burden of doing
the. So, in the onehundred and fourteen, what is said is
that the recipients are public health services. So I have said this effect,

(12:16):
apart from reminding a clause in aninsurance contract of these which are really difficult
to understand at all and full oftraps on the other hand, although it
in turn reminds a prefect of aregulatory type because of the detail it incurs.

(12:39):
Instead, it does not tell youto which health service to pay,
because of course, if the accidentis in Barcelona, it takes you from
Barcelona to Santiago de Compostela. FromSantiago de Compostela for some reasons, you
are taken to Seville and three publichealth services intervene to see how paraplegics are

(13:00):
paid. Barcelona accident sent Toledo.I' ll give it to you anyway.
The social health hospital of the BrainYear is in Madrid, because it
is the most qualified and ends upliving in Barcelona. That' s nothing
unusual, very common and that seemsclear. It' s not the norm,
but faith is the norm. Whatthe company has to do is because

(13:22):
it also claims to pay directly,to say, the legislator is thinking that
the insurer, by virtue of thelegal mandate, will faithfully comply I did
so the norm and will pay spontaneouslydirectly to the rich people that health.
Of course who pays it, becausethe health service that has attended the injured

(13:43):
during the time let' s sayof the temporary injury and it is not
previewed that it pays part and hasto pay it all the amount raised corresponding
to the calculation that is established bythe law and in the so talk and
then in the agreements that will alsobe mentioned. Of course, I received

(14:03):
the money in the case of theaccident that takes place in Madrid, receives
the money from the public health service, but the injured person is sent to
the parapéxicos hospital and what the publicservice does is allu that has received the
money, if it receives it,because there are public health services that,
before receiving the money, say andI why they pay me this and return
it. And until there' sa case where they give it back or

(14:28):
tell me don' t pay itback from you. All that that should
be regulated shines by his absence.And it is logical that it should be
polished by its absence, because inthe background, it gives the feeling,
or gives more than the feeling thatwhat it is about is not paying anything,
not even to the public health servicesand of the very high suspicion and

(14:50):
some contrast that they are not paidto the public health services, even if
they provide services. But, whatis unusual is that if the polio service
health of the injured person' sresidence does not receive health benefits from the
public service because he pays them,because he decides to exercise his freedom to

(15:13):
go to an unconcluded private center andhe assumes those future expenses, it turns
out that the money is given tothe public service. It' s health,
it' s a struction And it' s that, ultimately, the
conclusion of these two articles is thatthe law doesn' t regulate what it

(15:35):
would have to regulate and regulate whatit wouldn' t have to regulate because
what it would have to regulate isthe right to compensation of the injured person.
According to article thirty- four orso, the one that says that
the victim in case of injury isthe injured, which seems so, and
the legitimate in claiming the only legitimate, the single system. And another thing
is that if the sole legitimate hasa medical existence that lends him a public

(15:58):
health center or a mutual labour,it is logical that he automatically does not
have the right to claim what hedoes not pay because he assumes it by
the public cepic, assumes it bymutuality and that the public service is subrogated

(16:18):
or the mutual labour law that theinjured person would have had he paid the
assistance or had to pay it.That' s logical, but that'
s already regulated in the Social SecurityAct, in the Health Act. Therefore,
this article is in principle left over, because it is already regulated.
The right of health- care providersto recover health- care expenses, temporary

(16:45):
editing of emergency services or of thefamily doctor is not regulated at all,
but is provided and has the rightto reimbursement. It does not regulate the
right of reimbursement of the temporal onesAnd that regular in the case of the
sequels of the great injured, ofgreat tensioned granites of all. And it

(17:06):
goes down in such a way asto remove the initial sequels of the great
injured others. It' s amess. It' s a mess for
lack of determination, for lack ofidentification, for lack of foresight. And
my concept is in My concept isthat nothing more is paid than if some
are paid, the big injured,because with the game of presumptions and with

(17:27):
indeterminations and that if by sequels interthe recording and the mess that most mounts
the second part of the one hundredand thirteen, that is a literary piltraza.
What it says is that the sequelsthat, in any case, give
rise to the conversation of expenses fromthe future. They are the states of
as bizil or chronic vegetative, thecreological sequelae in their very serious and severe

(17:51):
degrees, the spinal lesions equal toor greater than fifty points, amputations or
other sequelae that precisely know prosthesis.Those are the clausus numbers. But if
you have an adhesion, the lumbarthat you have to operate for a lumbar
ortrodesis that is an operation that isassumed by social ones and no one pays

(18:14):
it clearly if it reaches these futures, there is in that assumption that you
say it might not understand if itis a future expense, but that it
is a pain that has happened.That is, there are indusics the session
in the lumbar spine that after correspondingtreatment, stabilizes with a chronic back pain
and that over the years evolves intoa post- traumatic disc production. That

(18:37):
is that a sequel would happen and, therefore, that would give rise to
the rejection, rebirth of the victim. But you' re operating socially.
Whoever pays the social expenses, ie the victim, has the right to
be resociated to the corresponding initiation forthe days of hospital admission and equally the
material of another synthesis and dried upthe result. But the surgery, if

(19:03):
done in the health care service,fifteen years after the initial injury, the
operating room needs health care expenses.No one' s covering it. Then
you have to understand that this isoutside of the one hundred and three and
fourteen, because they are not foreseeablemedical expenses, they are unforeseen. Now,

(19:25):
in that case, if you havea pejorative course of your injuries that
results in a reactivation, you enter. I think it' s article thirty
- nine, which is a newdamage, a damage that has happened.
And if there is damage and thereare medical expenses, those medical expenses are
also entitled to undercutting by the mutualunit I imagine of charge management. Of

(19:52):
course I wouldn' t stop himfrom the one hundred and fourteen. It
does not prevent it nor does theCargo Management Unit have thirteen. But the
other assumption of the years gone by. That, of course, although there
' s a mention in what you' ve read and that' s why
it comes out to you because asthere' s been a little talk in
the I think it' s inthe fourth, in the paragraph, the

(20:15):
paragraph, in the one hundred andfourteen, in the three, there'
s an allusion that' s veryconfusing about what it means. That is
also the mess in the entire marginof the benefit regime provided for in law
three seventeen Barra two thousand thirteen.Of course, then, what is the
useful conclusion that we quickly draw fromthe one hundred and fourteen, which we

(20:36):
already said in his day that,despite not being told by law, the
injured person cannot be deprived of thecompensation of the medical expenses that he has
to pay in the future, provingthat he will pay them or that he
has paid them. But whatever thatis, you can' t deny predictable
weights. For or and second,already going to the supposition of subrogation.

(21:00):
People' s services and health arerecognized. Public health services will have to
be recognized as likely to provide futurehealth services, but not to those who
are known not to be. Forexample, if the injured person is an
American who, having had the accident, has to have very serious sequelae,

(21:25):
his family flies him and takes himto a hospital aj to the United States.
The public health service is not goingto pay a hard price and I
do not believe that an insurance companyis so literalistic as to say how it
was in Madrid and I give itto Madrid' s preferred service. I
don' t think they even paythis public health service in the case of
the American. Even if the Americanlived and stayed in Spain, I don

(21:49):
' t think he' s gettingpaid. But what is serious is that
those who normally pay those costs incase of accidents at work. They are
labour mutuals, motors of accidents atwork, and it turns out that motors

(22:11):
and motors are omitted have the rightrecognized by law, by the consolidated text
of the social security legislation. Buthow can this civil precept pretend to omit
the mutualities that pay and clearly thefollions are vertigo. Assuming that the insurer
has paid spontaneously to the public healthservice, it turns out that whoever is

(22:32):
doing this charge is going to approachthese gestures is labor mutuality and labor mutuality
to whom it is claimed from thecompany. There have already been cases where
a mutual fund has gone to claimthe company. The company has paid him

(22:52):
the mutuality because he has gone throughthe executive process of sending the credit by
serving the general theory of the socialcity and then says the company. No.
You say I don' t payyou, because you only paid the
Public Service and Health. But you' re the one who' s got
it for you. I write Bucasubsi who is providing these assistance. I

(23:15):
' m a mess of fright,a river of fright. That' s
why I' m saying you sawan article that regulates what you wouldn'
t have to regulate But why regulateit, because it regulates it to get
the almendrujillo trick that consists of notpaying what you would have to pay for
why? Because there is a complicatedsystem of determining the value of these services

(23:38):
or of first clear indeterminacy, firstsaying what expenses are recoverable and under what
conditions they are reservable. But,once it has been said those that are
restable and to what degree and howthey are actable, it turns out that
in the reference to the table thathas the norm, it turns out that

(24:02):
they are only established in the articulatednorm, it is established that it will
be established by the tables, thecorresponding table. The table only sets maximums,
but maximum only of those in sectionone hundred and thirteen, three,

(24:23):
those of the huge sequels, exceptfor the last assumption that is in the
table, which is of painters twelveone, not twelve one, in the
two of one, maximum amounts ofthe assumptions of thirteen, thirteen that you
have read of the coma states,neurological sequels, medullar ions, amputations,
and then add to it at theend the disstructure of the penis. Well,

(24:52):
that' s worth seeing. Searchthe twelve- one table. If
you have it there, you don' t have it there. You'
re looking for a mouthful, getyour penis length and you' re going
to get knocked out. When yousee what the disstructure of the pini'
s foot is worth, I'm gonna give you one. Not a
dislike to a taste according to theminis, as you look at it,

(25:17):
as it becomes a potential, apotent victim, you can like twelve one.
It' s him or me.That' s great, that'
s great two. It was heredisstructure of the penis f eight seven includes
elective difunction four zero euros originally whichis now updated, which is about five

(25:38):
zero now to the year five thousand, to the years of the previous sequel
of the poor suficerrenal liver had foureight hundred degrees five eight hundred two.
Dialysis yes, yes, in needof replacement renal treatment, dialysis or renal
transplantation eight hundred and two euros originally. Where is the rationality, but how

(26:04):
can you provide more destructured penile attentionthan a dialysis from a guy, which
is a horror proceeding. These amountsare annual. They' re annual,
that' s the annual amount.Maximum annual? Maximum annual. It amends

(26:27):
because it may be inferior, butthen, in the law, as you
have read, it refers to agreementsthat companies may enter into with publics,
with public health centers that exist.There is the Good Convention, because that
framework agreement only regulates the fixed amounts, in this case, fixed below those

(26:51):
of Table 12 one lower amounts,and only those of paragraph one hundred,
thirteen, three, i e thoseof paragraph four, five, four and
five are not regulated, are notestablished, there is a determination of the

(27:11):
amount as to how it is calculated. There is no criterion for them to
be calculated. I am absolutely surethat no public health service is paid for
in paragraphs four and five. Tosay, it' s a mess of
fright, but let' s goto what interests us as lawyers directly and,

(27:32):
therefore, let' s comment alittle on your sentence, because we
already call it half an hour.This chapter concludes and I think that in
the next podcast we start with that. Yeah, we started with that.
Okay We conclude then this is podcastvoice saying that you can' t quit
and the advocate has the obligation andwith this I reiterate what I said the

(27:56):
previous session. The lawyer can't, if his client is going to
pay future medical expenses, he shouldn' t give up, to claim them.
You must claim them, even ifthe law does not say so,
because you cannot and is a naturalright of the victim. You can'
t suppress him. And from themoment the law says it regulates the foreseeable
costs of future healthcare, who can' t be taken away? That'

(28:22):
s the victim, they can't be taken away. And the second
thing that affects us less lawyers,is the whole problem of future public services,
which is a horror gibberish, whichis a stropic, which it seems
to be written by the one whodrafts the limiting closures of the insurances.
You said that in the previous chapter, that it was evident that it was

(28:45):
the article written by the insurance sector, this very clear and that it aims
to minimize the expenditure it wants torecognize. Therefore, this is a matter,
it is a lawsuit that demands thetechnical rebellion of the professionals, of
the law, of the lawyers,of the injured, because they must not

(29:07):
accept what is induced from the letterof the law, for the lack of
mention for the silence that eliminates thatcontains one hundred thirty and one, that
is, the one that is notmentioned to the injured. It has to
be interpreted as not necessary to putit, because that right cannot be taken
away from it. Then we leavehim for other semos. We conclude today

(29:32):
' s session with one hundred andthree hundred and fourteen. In the next
session, what we will have donewould comment on the sentence, because in
reference to this article there is aninevitatory concept and delivered by the judge who
gives you the right in everything youhave exposed yourself. And the truth is
that this sentence is so interesting andso intense that we still occupy the next
chapter. In the comment of thesense I have spoken too intently because you

(29:57):
have left it. I think Idegrated it very well and, even if
it is a little longer, itmakes it much clearer. Therefore, we
conclude today' s chapter by thankingyou Mariano and the next day, because
we comment on the sentence of thehit- and- run, where the
greatest individual compensation has been obtained toa single victim resulting from a traffic accident.

(30:19):
We won' t be weaving,but we' ll see everything and
we' ll see the next one. We will say on the next day
and start with the chapter of theestates precisely there in the future, because
thank you very much. And evenalways more and more brands are betting on

(30:52):
podcast as a communication tool. Butwhat advantages it has with a podcast talk
to your client in the ear byestablishing a more direct, close and emotional
connection, a space of dialogue thatcreates community, also increases the memory of
your brand and your credibility. Thewolf we want to help you. We

(31:15):
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