EL INCREMENTO DEL RIESGO COMO CRITERIO COMPLEMENTARIO A LA CREACIÓN DEL RIESGO NO PERMITIDO EN EL ANÁLISIS DE LA CAUSALIDAD EN LAS OMISIONES EN CONTEXTOS MÉDICO-SANITARIOS

Abstract

This paper, focused on medical liability, is intended to analyze how causation by omissions works. We affirm that the fault, in terms of creating a not allowed risk, is identified with the normative approach. Notwithstanding the foregoing, said intellectual projection of guilt and, consequently, of cau sation by omissions context, is possible to be answered through other approaches. In this sense, it is proposed to address the objective imputation criterion called increased risk (also known as lawful alternative conduct). It is considered that the aforementioned concept is useful in contexts in which the guilty omission cannot be considered as the cause of the damage, since if the behavior under question had not been omitted, the tort would have taken place anyway. Hence, the creation of impermissible risks can be taken as a presumption of causation in law susceptible to defensible contradictory reasoning. KEywords: causation; omissions; unauthorized risk; increasing risk; fault