Professional negligence in Colombia is a developing legal category that is currently not regulated by specific legislation. Development in this area has been led by national legal doctrine, which closely follows French and Argentinian teachings. At court level (especially in the area of medical liability), there is also a series of rulings, but jurisprudence is far from being systematic.
It is difficult, therefore, to write about professional negligence where its development is merely incipient. However, in this chapter we will define the legal framework, as well as the remedies and procedure that must be followed to pursue compensation for damage, and review this framework with regard to specific professions. We will then conclude with an overview of what has happened in recent years and what is expected in the future.
i Legal framework
Colombian legal doctrine understands professional negligence as the responsibility that derives from the infraction of duties by certain subjects who, on account of having special theoretical and practical knowledge, must act with special diligence, abiding by the lex artis, under which they are bound by duties and obligations stricter than those demanded by the 'prudent-person' principle.
The main elements of this type of responsibility are clearly derived from this definition, but it is necessary to make special reference to certain points, such as who may be liable for professional negligence, the obligations and special duties of the professional, and the liability regime itself; these points are considered below.
What is understood by 'professional'
In brief, it can be said that a professional is someone who regularly performs a licit activity in exchange for remuneration, whether or not that person has an academic degree that qualifies him or her to do so.2 National legal doctrine seems to agree that to be considered a professional it is not necessary to have an academic degree, and experience obtained by repeatedly practising the activity is sufficient.3 This is very important in a country such as Colombia, where access to higher education is restricted and the figures for those engaged in the informal economy have reached 48 per cent.4
Another common characteristic is having an organisation, whether rudimentary or elaborate, to exercise their trade effectively and prevent or face the risks inherent in the activity.
Finally, and perhaps the most relevant feature, is the specialist knowledge particular to the profession and the competence of the professional compared with a normal citizen in relation to the techniques and rules of their trade (known as the lex artis).
In summary, it is said that the criteria for identifying a professional are the presence of the characteristics of specialism and habitual practice, and the onerous nature of the activity.5
Professionals have a series of special duties derived from but somewhat more stringent than the general duty of prudence and the principle of good faith.
Diverse classifications of the duties of the professional have been elaborated in legal doctrine, but we share the one given by Juan Bernardo Tascón:6
- loyalty to the client and to third parties (i.e., acting transparently and respecting their rights, and avoiding inducing them into any deception);
- duty to act faithfully, that is, to execute the contract fully, on time and in the best possible manner, in accordance with the lex artis;
- information and advice;
- confidentiality; and
- security duties, related to caring for the physical or patrimonial integrity of people and things with which the professional has contact in the exercise of his or her contractual obligations.
Failure to comply with any of the above-mentioned duties may lead to professional liability for damage caused to third parties.
There is no separate professional negligence regime, despite the different movements that advocate for the structuring of an autonomous regime.7 In any case, the principles of civil liability are applicable to professional negligence and, therefore, the causal connection between damage and conduct must be verified.
This responsibility will be of a contractual or extra-contractual nature, depending on the existence or non-existence of a contract between the professional and the victim.
In regard to the liability imputation factor, there is no general rule, but it is an eminently subjective responsibility, where it is necessary to prove the professional's negligence (conduct that does not meet the due diligence requirement or is contrary to professional duties). In this regard, prominent teachers8 propose as a general foundation of professional negligence the rule contained in Article 2144 of the Colombian Civil Code (unless a specific rule applies), according to which the services of professions and careers that require long studies are subject to the rules of agency in which liability is of a subjective nature and in light of which the agent is liable even for slight negligence. The strictness of this responsibility will depend on the gratuity or paid nature of the contract and whether the agent has been forced to accept the assignment despite initially having rejected it.9
However, there are events in which professional negligence may be a case of strict liability; for example, regarding warranty obligations, liability for defective products, obligations to achieve results, carrying out dangerous activities10 or, according to some authors,11 overseeing the physical or patrimonial integrity of people or things – although traditional legal doctrine12 establishes that security duties may be of best efforts or to achieve results, depending on the situation.
ii Limitation and prescription
The Colombian legal system foresees terms of prescription and expiration of the action. In the first case, the general prescription terms apply, depending on the liability regime applicable in the specific case (i.e., contractual or non-contractual). When the administrative jurisdiction is concerned in the action of professional negligence, there may be special rules relating to the time in which the action must be exercised (expiration).
Additionally, Colombian law establishes specific periods of limitation, as in certain kinds of contracts through which the professional activity is exercised, or in the case of consumer relations. For example, the law provides that in transport contracts the term within which to exercise the action is two years.13 In insurance contracts, there are two types of limitation period: ordinary prescription, which applies to the insured and runs from the moment he or she had or should have had knowledge of the event; and extraordinary prescription, which runs against anyone, and is five years from the occurrence of the event.14
In the second case, Law 1480/2011 (the Consumer Protection Statute) sets forth special warranty terms, within which producer and supplier must respond for the quality, suitability, safety and good condition and functioning of the product,15 while the consumer must bring the claim within the established warranty period. Additionally, this Statute provides special deadlines for the exercise of consumer protection actions, applicable in all sectors of the economy regardless of whether the actions are brought to discuss contractual disputes.16
At present, considering the limitation periods imposed by the Consumer Protection Statute, the problem arises as to whether these have become the general rule, since most market relationships are consumer relations and for that reason the Consumer Protection Statute would be applicable. At present, there is no definitive answer to this question and the statute of limitations must be considered case by case in the jurisdiction where the claim is heard.
iii Dispute fora and resolution
Most professional negligence cases are brought in the ordinary jurisdiction. The quantum of the claims will determine whether it will be a single-instance or double-instance process. If the claims exceed 1,000 Colombian legal monthly minimum wages,17 the Supreme Court of Justice, the highest court of the ordinary jurisdiction, may hear the matter as a court of cassation.
Some professional negligence conflicts are brought before administrative courts. Disputes are heard in this jurisdiction against public entities or individuals exercising a public function. The most important advances and rulings have occurred in the medical liability area.
As in the ordinary jurisdiction, in the administrative jurisdiction the processes may be of single or double instance, depending on the quantum of the claim. In cases involving more than 500 Colombian legal monthly minimum wages, the Council of State, the highest court of the administrative jurisdiction, may function as a second-instance court.
Whether the claim is brought before ordinary or administrative courts, the stages of both procedures are quite similar. First, the parties will be integrated into the process by submitting the claim and its response. Subsequently, a pretrial hearing is held, where the matters to be discussed in the process are defined. Finally, the trial is held and the ruling made.
However, both procedures are governed by different codes: the ordinary jurisdiction is governed by the General Procedural Code and the administrative jurisdiction by the Code of Administrative Procedure and Administrative Litigation. Although both codes consider oral proceedings and procedural economy, there are differences between them (particularly in matters of evidence and remedies) that preclude the idea of a unified regime to facilitate the role of parties in judicial processes.
iv Remedies and loss
In Colombia, there are no specific remedies for each right. To claim damages for professional negligence, the general rule is to commence a declaratory procedure before the civil courts or a direct reparation action before administrative courts, depending on which is competent in the case. It will be very important to adequately formulate the claims in the lawsuit, distinguishing whether it is a contractual or non-contractual liability regime.
Regarding damages, Colombian case law recognises compensation for pecuniary and non-pecuniary damage.
Our legal system divides pecuniary damage into costs incurred and lost profits.
'Costs incurred' means 'an asset has left or will leave the victim's estate'.18
There is loss of profit 'when an asset that should have, in the normal course of events, entered the victim's estate did not nor will not enter the victim's estate'.19 Documentary evidence and experts' reports can be used to demonstrate these losses and their quantum.
In addition to patrimonial assets, the Constitution and laws protect other non-pecuniary rights that may suffer impairment in professional negligence cases. Our judges recognise three principal types of non-pecuniary damage.
First, moral damage,20 which refers to the victim's condition due to physical or emotional suffering.
Second, the damage that affects the victim in his or her relationship with another, or his or her conditions of existence.21 This type of damage refers to cases in which the victim suffers an impairment of his or her way of living, making it impossible or difficult to continue to perform activities that gave him or her pleasure and enabled his or her existence.
Thirdly, our jurisprudence recognises compensation for damage caused to other constitutionally protected rights, such as the right to a good name or honour.
All non-pecuniary damage must be proved in the process, although there are some specific cases in which its existence is judicially presumed.22 Unlike that of other jurisdictions, Colombian case law has defined standards to assess this damage. The High Courts, through their rulings, have indicated the maximum sums that may be granted in certain groups of cases, and these serve as guiding criteria for judges exercising discretionary power.
II SPECIFIC PROFESSIONS
The responsibility of lawyers is a subject little debated in Colombian jurisprudence and legal doctrine, which are in default of having a serious discussion of the matter. Today, the act of an advocate can engender state responsibility when they act in the exercise of a state function, as in cases of judicial error; or civil liability, if the damage caused by the professional's conduct arises when the latter acts as a private attorney. Considering the interest of this chapter, we will focus on the second case, where litigation may be based on contractual or non-contractual liability, depending on whether there was a professional services contract.23
As a general rule, the responsibility of the lawyer is subjective, since the main obligation in the agency contract is to act with diligence, care, expertise and professionalism.24 This does not exclude the existence of accessory obligations to achieve results in the contract. For example, the lawyer must use all his or her expertise to defend the client, without this implying that he or she must win the process, but he or he must submit a timely response to the lawsuit. The first is a best-efforts obligation, the second, an obligation to achieve results.
Furthermore, lawyer are subject to specific rules for the exercise of the profession compiled in the Disciplinary Code of the Legal Profession,25 which defines the guiding principles for the exercise of the profession, the disciplinary offences and their corresponding sanctions, as well as the entire disciplinary procedure. The Code also contemplates the period of limitation of these disciplinary actions (i.e., five years from the occurrence of the fault, in general).26 Disciplinary actions against lawyers are heard by the Superior Council of the Judiciary and its sectional councils.
Finally, our case law has used different institutions to distinguish which losses may be attributed to lawyers in the context of civil liability, and to determine how they are assessed. As to the first point, 'loss of opportunity' (brought from French law) has been coined for those cases in which the lawyer has deprived the victim of the possibility of earning a benefit. Under this institution, the compensable loss is not the loss of the case itself, but the loss of the possibility of winning it.27 Damages are calculated according to the Theory of Prosecution Judgment,28 which is based on the same principle as the theory of loss of opportunity, in that damages are determined based on previous decisions in similar cases and other objectively applicable rules.
ii Medical practitioners
Health professionals can be prosecuted in two ways: first, with regard to medical ethics standards;29 and second with regard to civil liability. In the first case, the act of the professional is examined to determine whether it complies with the general ethical and technical standards of the medical profession such that, in the event of deviations, sanctions are imposed on the practitioner. These cases are heard by the National Medical Ethics Tribunal and regional medical ethics committees30 composed of doctors.
In the second case, the assessment also concerns the doctor's behaviour and whether it complies with the standard required of a professional with similar characteristics in a similar situation, but particularly with a view to establishing whether there is civil liability for damage caused to the victims. As a general rule, the claimant must prove the practitioner's negligence, because medical practitioners are, as a matter of course, required to practise using 'best efforts'.
Notwithstanding the above, as regards state liability for failure to provide medical services, there is a robust Council of State (CE) precedent where negligence on the part of the practitioner is presumed,31 especially in gynaecological services: according to the CE precedent, the patient's healing is to be regarded as the normally expected outcome and, in the event of an abnormal result or damage, the practitioner must prove that the outcome was not caused by negligence on his or her part.32
Consequently, courts have embraced the theory of a dynamic burden of proof – imposing the burden of proof on the defendant doctor – arguing that the technical knowledge and direct service provided put the health professional in a better position to prove the absence of negligence. What was initially a case-law precedent has turned into law and our most recent procedural laws order the application of this theory.33
However, there is agreement in national legal doctrine and jurisprudence that the responsibility of the practitioner is subjective and therefore based on fault, although in some instances, strict liability applies. This is the case for aesthetic procedures,34 or improper handling of a hazardous object used in the medical act.35
The absence of informed consent is a recurrent cause of liability in the Colombian jurisdiction. If informed consent is not duly taken, the practitioner will be held liable. Finally, it should also be mentioned that the Colombian High Courts have issued medical liability rulings under the theory of loss of opportunity.
iii Banking and finance professionals
This group of professionals includes financial institutions, banks, finance companies and other companies that carry out activities in the financial market.
The applicable liability regime is the one explained in previous sections for professionals in general, which may be contractual or non-contractual, but with the distinction that these entities are subject to greater vigilance and control. This responsibility is usually subjective, but in contractual liability variations may arise, depending on whether the contractual obligation whose breach would give rise to liability is in the nature of best efforts or to achieve results.
This group of professionals is governed by Decree 663 of 1996 (the Organic Statute of the Financial System (EOSF)),36 which defines the participants in the market, their activities and their professional duties, as well as prohibitions and limitations on their activity. The EOSF also provides sanctioning regimes applicable to natural persons or institutions subject to supervision and control by the Financial Superintendence of Colombia (SFC),37 the entity in charge of supervising organisations that participate in the financial market, and to which jurisdictional functions have been attributed. These sanctions are administrative and their imposition does not preclude victims from initiating private actions, either civil or criminal, for the compensation of damage.
Several Supreme Court rulings are worth mentioning regarding the liability of financial institutions, although they do not present an organised set of criteria to determine liability. Some of the most recurrent issues are: payment of counterfeit or adulterated cheques;38 breaches of direct-debit agreements; abuses of dominant position in contracts,39 in charging for financial services40 and in criminal investigations of employees;41 unjustified reporting to credit bureaus based on the collection of a non-owed capital;42 and fraud in transactions through unusual channels.43
Dissatisfied financial consumers increasingly tend to bring their lawsuits before the SFC because it offers a quick resolution and puts pressure on the financial institution, which in addition to being ordered to pay damages may receive a disciplinary penalty. The most frequent cases involve fraudulent operations through unconventional channels, credit-card fraud and payment of counterfeit cheques.
iv Computing and information technology professionals
Computing and technology professionals are not subject to specific regulation. They are grouped under the category of 'software engineers and related professions' and, to that extent, their activity will be regulated by the same general rules applicable to all engineering professionals, defined by law as those that apply 'the physical, chemical and mathematical sciences . . . to the use and invention of the subject'.
The most important legislation comprises Law 842 of 2003 and Law 1325 of 2009. Law 842 defines the engineering profession and indicates the requirements for these professionals to obtain their licences and practise lawfully. In addition, it establishes the functions of the National Professional Engineering Council, including the inspection, supervision and control of this professional practice. This body is also responsible for sanctioning the faults of these professionals in accordance with the procedure established in this Law and which may be initiated informally or by complaints filed by the public.
Law 842 establishes a code of ethics: the 'framework of professional behaviour of the engineer in general'. This code contains some general duties that comprise the framework for professional behaviour, with an emphasis on the duty to guard and maintain the goods, valuables and information entrusted to them. The code of ethics does not deviate from the general duties that are required of all professionals, but it is particularly stringent in those cases where professionals undertake activities in which they fail to meet the minimum standard of conduct.
Any act or omission by an engineer, including software engineers, in breach of professional or legal duties, violation of the code of ethics or exercise of criminal activities is subject to disciplinary sanctions. And the victim may also pursue compensation for damage caused by software professionals, under the general rules considered above.
v Real property surveyors
Although property inspections can have multiple purposes, such as determining the boundaries of a site and preparing maps or reports, or establishing the limits of construction on a property, these tasks are exercised exclusively by the state, with the intention of creating or updating the cadastral registry.
In Colombia, the work of private property inspectors is only focused on commercial appraisal – that is, on inspecting a property to determine, under technical and economic criteria, its commercial value for different purposes.
The most important legislation in this matter is Law 1673 of 2013, which indicates all conditions under which the appraiser must operate, such as being registered in the Open Registry of Appraisers.
Law 1673 also establishes the Code of Ethics of Appraisers, which is 'the framework of behaviour of the appraiser', and violations of this Code are sanctioned. Appraisers' duties include acting with 'the utmost diligence' in the matters they oversee, and maintaining the confidentiality of information related to their clients and the jobs carried out.
The same Law establishes that the appraiser is primarily an adviser and 'guardian' of the interests of his or her clients and must never act to the detriment of third parties. Although this mandate emanates from the general principle of acting in good faith, it is admirable that Law 1673 has expressly established this, highlighting the social importance of this profession.
In the case of appraisers, there is not only one disciplinary body. The Law permits the existence of several Recognised Self-Regulation Entities (RSEs) that, in addition to appointing assessors and contributing to the Open Registry of Appraisers, have sanctioning faculties regarding their members.
Finally, despite the merits of Law 1673, the adequacy of a system of inspection, monitoring and control of appraisers through RSEs is still at a very incipient stage (only one such entity has been created), and it is unknown how successful their coexistence may be.
vi Construction professionals
This group comprises all professionals who engage in construction. The general civil liability requirements explained in previous sections apply to these professionals, as do several other statutes,44 including the statutes regarding each professional and technical career,45 such as engineering46 and architecture.47 These regulations set out specific duties for construction professionals, who must comply with them to be considered diligent and careful. These duties tend to prevent the causation of damage, so their non-observance becomes a fault giving rise to liability.
However, it does not imply that the professional responds exclusively to a subjective type of responsibility. Indeed, construction is considered a dangerous activity by our case law and thus the general rule that negligence of the professional needs to be proven does not apply.
Construction professionals are liable under the terms of Article 2060 of the Civil Code, which contemplates the rules applicable to the construction contract.48 This Article, in its third paragraph, imposes on the constructor an obligation to achieve results, consisting of a 10-year construction warranty,49 which is also set forth in the Consumer Protection Statute, which establishes that the constructor is liable for the stability of the construction for 10 years, but also for interior finishings for one year.50
One must distinguish between an engineer working under a turnkey contract or delegated administration contract51 (and who is bound by the 10-year warranty and has an obligation to achieve results) and an engineer in charge of the soil survey, who is only liable if negligence is proven.
A final differentiation must be made with respect to the regime applicable to construction professionals when damage is caused in the exercise of a dangerous activity. In such cases, the construction professional is responsible under strict liability and can only be exonerated in the event of force majeure.
In light of recent events, in 2014 a compulsory insurance scheme for the stability of buildings was created by law, but this still needs further regulation and, therefore, is not yet in force.
vii Accountants and auditors
Our legal system considers accountants to be of great social relevance, particularly because they certify facts that come to their knowledge in the exercise of their duties, and because failure to offer reliable information can have significant economic consequences.
Law 43 of 1990, which regulates this profession, has instituted two bodies: the Technical Council of Public Accounting, in charge of the technical–scientific orientation of the profession; and the Central Board of Accountants, which works as a disciplinary court and ensures compliance with professional ethics, having sanctioning power for that purpose. The sanctions that can be imposed range from fines to the cancellation of the licence to practise as an accountant. However, behaviours that may constitute violations can be found in the professional code of ethics of Law 43. The code prohibits any alteration of the documents that serve as the basis for professional advice or accounting and auditing practice, or any lack of truth in opinions issued. In addition, it prohibits accountants from providing services for which they are not well suited, and from exposing their clients to unjustified risks; it also requires practitioners to avoid conflicts of interest.
Apart from the sanctions of the code of ethics, Articles 58, 207, 216 and 222 of the Colombian Code of Commerce sanction accountants for irregularities in accounting records, breach of confidentiality, negligent performance of their duties or failure to report an economic crisis within a company. The Colombian Tax Statute establishes sanctions for accountants who have been inaccurate in tax declarations they have signed.
Finally, Article 42 of Law 222 of 1995 makes auditors responsible for damage caused to the company, shareholders or third parties by not preparing or publishing financial statements. Of course, on top of this, all other conduct outlined would be a source of professional negligence of accountants.
viii Insurance professionals
Although there are other professionals in this group, we will deal primarily with insurers and brokers, and with particular focus on insurers.
First, insurance professionals and their activity are regulated mainly in the Code of Commerce, the EOSF, Decree 2555 of 2010, Law 1328 of 2009, the Basic Legal Newsletter and the Basic Accounting and Financial Newsletter; the last two of these are the responsibility of the SFC, which is in charge of the inspection, surveillance and control of people who perform any activity in the Colombian financial system, including insurers.
Complaints can be lodged with the SFC against insurers for inadequate provision of a service or for breach of a legal or regulatory standard that falls within the SFC's remit. The SFC is also competent to sanction insurers in the event of a breach of standards, but as an administrative entity it cannot make decisions on a breach of contract, or order compensation or refunds. For the resolution of contractual disputes between a financial consumer and an entity of the same nature, the law has enshrined, among other things, the financial consumer protection action,52 which can be processed by an ordinary judge or by the SFC in exercise of the jurisdictional functions granted by the General Procedural Code.53
Furthermore, there is a union called Fasecolda, which brings together insurance, reinsurance and capitalisation companies, and whose mission is to contribute to the development of insurance activity in Colombia by representing this sector before authorities and society in general in the formulation of policies and the promotion of insurance culture. However, unlike other bodies, it has no disciplinary powers or control over its members.
Finally, we note that there are no important deviations in the liability regime of insurance professionals.
III YEAR IN REVIEW
Bearing in mind that this is the first time that a chapter for Colombia has appeared in this publication, we will allow this review to cover more than a year and we will begin by reiterating that professional negligence is an incipient concept here. There is no specific legal regime, nor a clear jurisprudential line regarding the matter. Advances are made by national and foreign legal doctrine and, partly, by insurance policies that specifically exclude professional negligence of the insured or are designed to cover specifically responsibility negligence, which has led the doctrine to ask what this is. This has led to the publication of works such as that by Nicolás Uribe Lozada discussing directors' responsibility, professional negligence and the legality of its exclusion in directors and officers policies.54
The concept of professional negligence is slowly beginning to reach the rulings of the High Courts. Thus, for example, the decisions of the Labour Chamber of the Supreme Court of Justice are interesting in the sense that, in recent years, the Chamber has been dedicated to defining the duty of information and advice of pension-fund managers, particularly in the case of advising future pensioners on the choice of the most suitable regime.55
The Civil Chamber of the Supreme Court of Justice is not far behind. It has begun to discuss specifically professional negligence of financial institutions. For example, in a ruling by Justice Ariel Salazar Ramírez,56 a financial entity sued for the theft of a sum from the plaintiff's savings account was sentenced for 'pharming', because the user accessed a false internet portal of the financial entity. Although the Court decided not to annul the appealed judgment, the ruling contains an interesting compilation of previous rulings in which it had already discussed professional negligence of financial institutions.
Furthermore, the ruling of 24 August 2016 regarding medical responsibility, institutes the theory of organic liability to explain how a medical service provider must answer for defects in its operation57 even if negligence cannot be attributed to a specific individual.
Accordingly, we see a clear tendency to consider 'a professional' to be not only the natural person who has pursued a career or practised a profession, but also legal entities created to provide professional services.
IV OUTLOOK AND FUTURE DEVELOPMENTS
We believe that jurisprudence will continue to evolve in construction cases and cases of medical liability, although we cannot anticipate the same evolution for the other professions in the near future.
However, there may be an interesting surprise in the case of professional negligence of lawyers. The rulings issued by the Superior Council of the Judiciary are increasingly relevant and it is likely that mistakes committed by lawyers will be brought before the civil courts in claims for damages.
1 Laura Restrepo Madrid is a partner at Tamayo Jaramillo & Asociados. The author greatly appreciates the active participation of Ana Isabel Villa and Laura Daniela Alzate, lawyers at Tamayo Jaramillo & Asociados, in the preparation of this chapter, and is especially appreciative of the guidance, support and confidence shown by Dr Javier Tamayo Jaramillo.
2 Tascón, Juan Bernardo. Responsabilidad Civil, Derecho de Seguros y Filosofía del Derecho: Estudios en Homenaje a Javier Tamayo Jaramillo, Biblioteca Jurídica Diké, 2011: 1147.
3 Palacio Barrientos, Juan David. La Responsabilidad de los Profesionales, in: Revista IARCE No. 23 – June/2008: 114.
4 See http://www.portafolio.co/economia/gobierno/informalidad-laboral-en-colombia-2016-503278 (last accessed 12 March 2018).
5 Suescún Melo, Jorge. Derecho privado: Estudios de Derecho Civil y Comercial Contemporáneo, Vols. 1 and 2, 2nd ed. Legis, 2005.
6 Tascón, J. B., 2011: 1147–1148 (see footnote 2).
7 Suescún Melo, J., 2005 (see footnote 5); Tascón, J. B., 2011 (see footnote 2).
8 Tamayo Jaramillo, Javier. Tratado de Responsabilidad Civil, Vol. I, 2nd ed. Temis, 2007: 526–529.
9 Civil Code, Article 2155.
10 In the case of liability for hazardous activities, since there is a presumption of guilt and it is disputed, whether the liability is strict or remains subjective.
11 Le Tourneau, Philippe. La Responsabilidad Civil Profesional, traducción de Javier Tamayo Jaramillo, Legis Editores, 2006: 188.
12 Tamayo, J., 2007: 89 (see footnote 8).
13 Code of Commerce, Article 993.
14 Code of Commerce, Article 1081.
15 Law 1480/2011, Articles 7 and 8.
16 Law 1480/2011, Article 58 No. 3.
17 The legal monthly minimum wage for 2018 in Colombia is 781,242 pesos (approximately, US$275).
18 Tamayo, J., 2007, Vol. II: 475 (see footnote 8).
19 Tamayo, J., 2007, Vol. II: 475 (see footnote 8).
20 i.e., pain and suffering.
21 i.e., loss of amenity.
22 The presumption also operates for moral damage suffered by the closest relatives of the deceased direct victim.
23 Álvarez P., Andrés Orión. La Responsabilidad Civil del Abogado y su Aseguramiento. Part I, in: Revista IARCE No. 25 – July/2009: 297–320.
24 Tamayo, J., 2007: 526–529 (see footnote 8); Álvarez, A. O., 2009: 308 (see footnote 23).
25 Law 1123 of 2007 (amending Decree 196 of 1971 (the Statute on the Practice of Law)).
26 Law 1123/2007, Articles 23 and 24.
27 Chabas, François. La pérdida de una oportunidad ('chance') en el derecho francés de la responsabilidad civil, in: Revista Responsabilidad Civil y del Estado. September 2013, No. 33., Vol. II, 8-14 Ed.: 55–76.
28 Also known as: The Judgment of the Judgment. Álvarez P., Andrés Orión. La Responsabilidad Civil del Abogado y su Aseguramiento. Part II in: Revista IARCE No. 26 – November/2009: 233–252.
29 Law 23 of 1981 (the Code of Medical Ethics) and Decree 3380 of 1981, which regulates the former.
30 See https://tribunalnacionaldeeticamedica.com/nosotros (last accessed 15 March 2018).
31 CE, 3rd Section. 30 July 1992 Ruling. C.P. Daniel Suárez Hernández; CE, 3rd Section. 13 August 1992 Ruling. C.P. Daniel Suárez Hernández; CE, 3rd Section. 24 August 1992 Ruling. C.P. Carlos Betancur Jaramillo; CE 3rd Section. 18 April 1994 Ruling. C.P. Julio César Uribe Acosta; CE, 3rd Section. 10 April 1997 Ruling. C.P. Carlos Betancur Jaramillo.
32 CE, 3rd Section. 3 February 1995; CE, 3rd Section. 18 July 11997; CE, 3rd Section. 24 June 1997.
33 Article 167 of the General Procedural Code.
34 CSJ. 26 November 1986.
35 CSJ. 14 October 1959; Vásquez, Roberto. La Prueba de la Culpa Médica. Ed. Diké, 1995: 176.
36 EOSF and its complementary regulations.
37 EOSF, amended by Law 795/2003. Articles 208–212. Financial activity in Colombia is additionally regulated by Decree 2555 of 2010, as amended; Law 1328 of 2009 (the Consumer Protection Regime); the legal newsletters issued by the SFC; and the applicable regulations of the Code of Commerce.
38 CSJ. Ruling of 8 September 2003. Exp. 06909.
39 CSJ. Ruling of 19 October 1994. Exp. 3972.
40 CSJ. Ruling on Class Action 22 April 2009. Exp. 00624.
41 CSJ. Ruling of 18 December 2009. Exp. 00758.
42 CSJ. Ruling of 5 August 2014. Exp. 3972.
43 CSJ. Ruling of 19 December 2016.
44 Law 9/1989, Law 388/1997 and complementary regulation (urban reform and territorial reorganisation); Laws 2 and 3 of 1991 (social dwelling); Law 546/1999 (the financial system for construction); and Law 400/1997 reformed by Law 1229/2008 (seismic resistant construction).
45 Law 14/1975.
46 Law 842/2003.
47 Law 435/1998.
48 This rule also applies to architects, according to Article 2061 C.C.
49 Solarte, Arturo. El Régimen de Responsabilidad Civil de los Constructores en Colombia. 2nd International Congress of Insurance Law. 2014.
50 Law 1480/2011, Article 8.
51 Arbitration award Conavi v. Conconcreto. 16 February 2004.
52 Law 1480/2011.
53 Law 1564 /2012, Article 24.
54 Uribe Lozada, Nicolás. El Régimen General de Responsabilidad Civil de los Administradores de Sociedades y su Aseguramiento. Bogotá, Editorial Universidad Javeriana, 2003.
55 CSJ, Labour Chamber. Ruling of 3 September 2014. No. 46292. See also Superior Tribunal of Medellín, Amparo Carvajal v. Protección S.A. and Colpensiones. No. 05001310502020140102001.
56 19 December 2016.
57 Understood as 'the execution of administrative decisions or the performance of acts adopted by the hierarchical chain . . . failures in planning, in controlling, in organising, in coordinating, in providing resources, in using technology, in providing communication channels, in providing prevention policies, among other variables', according to the decision mentioned above.