State Liability Insurance Derived from an antijuridical damage caused in the provision of health services. Analysis of the guarantee of the rights of the pregnant woman, the unborn child, the newborn baby and the protection of the State's assets

Abstract

This research article aims to analyze compliance with the guarantee of the rights of pregnant women, unborn children, and newborns when they are victims of wrongful damage caused by the Colombian State. It also intends to identify the advantages of state liability insurance, which seeks to protect the State’s assets. The damage victims are subjects of special reinforced constitutional and conventional protection. Numerous relevant changes have been made seeking the protection of their guarantees, which is why this investigation is highly relevant. These subjects, direct consumers of a medicalservice, have a special safeguard of their rights by the healthcare provider, i.e., a health professional or public or private legal entity that facilitates the provision of this service. When the patient’s guarantees are affected by the public servant’s negligent, reckless, or violative action of the lex artis, illegal damages arise that need compensation. Compensation is made effective based on the cause of the damage or by the insurer of the victimizer. Because these victims are subjects of special constitutional and conventional protection, the Colombian Council of State has established the payment of significant sums of money to guarantee the fundamental right to comprehensive compensation. Consequently, the State transfers the risk to an insurance company that guarantees the payment of this compensation. This research adopted a qualitative approach with an exploratory and critical scope, supported by a critical and holistic hermeneutic method, documentary review techniques, and conversation with experts. Scopus, Scielo, Publindex, and Latindex databases, among others, were established as research tools.