Non-contractual liability of the state for deficient provision of the public health service in Ecuador

Abstract

The legal institution of the extracontractual liability of the State has become a mechanism of control and evaluation of the State power. It is the punitive form that the different legal systems have found for the administration to repair in a comprehensive manner the damages caused to the administered due to failures of the public health service. This research seeks to develop a doctrinal and jurisprudential study on the legal foundations that support the extra-contractual liability of the State and ensure the achievement of full reparation for the damages caused by the deficient provision of the public health service in Ecuador, in which the theory of neutrosophic numbers is used. According to the approach, a predominantly qualitative mixed type of study is presented due to its philosophical-legal scope. For the characterization of the problem raised, doctrine and jurisprudence related to liability and its relation with damage, malice, fault, fortuitous event, force majeure and exemptions to this liability are reviewed. In addition, the legislation of this type in countries such as Colombia, Chile, Spain, France and Argentina is studied, which showed that in these countries the treatment is based on the system of presumed or proven failures, with markedly subjectivist nuances. Finally, comments are made on the rulings of the contentious-administrative courts of the last five years, which make it clear that the will of the judge is to accept exemptions from liability by introducing causes such as nosocomial diseases or by assessing the risks inherent to the different treatments.