i Legal framework
Professional liability in Argentina is governed by the Argentine Civil and Commercial Code (CCC). Specific acts of professional misconduct might also be governed by criminal and administrative law, such as regulations applicable to, among others, lawyers, medical practitioners and certified public accountants (CPAs), in which case criminal or administrative sanctions might be applicable, but these sanctions are independent from the civil liability regime set out in the CCC.
As a general rule, to impose liability on a subject for an act, Argentine law requires the existence of an unlawful behaviour, damage, an adequate causal relationship between the unlawful behaviour and the damage, and wilful misconduct or negligence.2
Section 1768 of the CCC sets out a rule of negligence for regulated professions such as lawyers and CPAs, unless a specific result has been compromised.3
In particular, in cases of professional liability, the following requirements must be proven: the professional did in fact owe a duty of care; and the professional breached that duty and the breach caused damage to the client (either actual damage or lost profit).
Professional duties of care are set out in specific codes of conduct or professional protocols (such as the provisions of Law No. 23,187, applicable to lawyers, or medical protocols, as noted below) or in case law. Therefore, the aggrieved party shall establish that there has been a breach of that duty (i.e., the professional did not comply with the standard of care owed).4
Professionals may owe a duty either in contract or in tort law. From the perspective of contract law, the standard of care may be expressed in the contract or implied by statute. The standard of care required in a claim in tort is the standard that would be expected by a reasonable person.5 Negligence will be established only if the professional has not complied with the standard of care.6
However, since the enactment of the CCC in 2015, a unifying methodology for the civil liability regime has been established, so there is a unique regime to impose liability, whether it stems from a breach of contract or from tort law. Consequently, the four legal requisites referred to above shall be met: unlawful behaviour, damage, an adequate causal relationship between the unlawful behaviour and the damage, and wilful misconduct or negligence.
Even where a duty, and its breach, have been established, professional negligence claims are required to prove causation. A fundamental doctrine of Argentine law is that of adequate causality, which is codified in Section 1726 of the CCC. According to the adequate causality doctrine, not all conditions that concur for something to happen are equivalent. A distinction is to be made between cause and a mere condition.7 It is not sufficient that a fact or an action is a sine qua non condition for the damage to happen; after judging its reasonable probability, it must also be deemed to be adequate cause of the damage. Thus, causality is only the particular condition that, according to a qualified probability, may have been the key factor for the events at issue to happen. Or, in other words, it is the condition that, according to the normal course of events, is suitable to produce a result and must regularly produce it.8
Therefore, to establish the cause of damage, it is necessary to make an abstract ex post facto adequacy analysis or a probability calculation and come to a conclusion as to whether, in light of the facts, the action (or omission) of the presumptive damaging agent was in itself apt to cause the damage according to the ordinary course of events. While establishing the existence of the causal link does not require absolute certainty (because a reasonable probability will be sufficient), its existence cannot be founded on conjectures or uncertain possibilities.9
Finally, although not widely adopted, professional liability insurance is generally taken out by some professionals, such as medical practitioners.
ii Limitation and prescription
Although Section 2560 of the CCC provides a five-year term as a general term for the statute of limitations, the common term of three years has been set out in Section 2561 for any duty related to actions for damages arising from civil liability.
This three-year term does not vary according to the cause of the damage. In other words, the term set out in Section 2561 is considered the generic one for this type of claim, because it covers every claim for compensation of damage, whether derived from a breach of contract or from tort law.10
The limitation period may be interrupted by any petition to a judicial authority by the right holder that reflects the intention not to abandon the right, even where the petition is defective or made before an incompetent court.
iii Dispute fora and resolution
The judicial procedure for the purpose of determining a professional’s liability corresponds to civil court proceedings, through what are known in the Argentine judicial system as ordinary proceedings. The process is conducted by a judge, in written form. The typical time frame for a first instance judgment is three to five years.
Pursuant to the ordinary procedural rules of the National Civil and Commercial Procedural Code (NCCPC), once the claimant has filed a claim before the court of first instance (and the claim has been served to the other party), the defendant has 15 business days to submit a response to the complaint, including – ultimately – any counterclaim. If a counterclaim is filed, the claimant must provide his or her response, if any, within 15 business days of receipt of the formal notification. Subsequently, the court calls the parties to a preliminary hearing at which, inter alia, it invites the parties to settle the dispute amicably and then, if no agreement is reached on the matter, it decides on the evidence produced by the parties and declares the evidence stage open for a term not exceeding 40 days.
Documentary evidence shall be attached to the claim or statement of defence, while any other evidence the parties intend to produce shall be offered in those main pleadings. In Argentina, there are no discovery proceedings as they are known in the common law.
The NCCPC provides specifically for the following types of evidence: documentary, factual witness, expert evidence, judicial requests for information from private and public entities, judicial confession, and judicial examination of sites or assets.
Experts are considered auxiliaries to the court and therefore provide independent advice to the court. Each party can appoint a technical consultant who can file his or her own expert report in writing. The appointment of the consultant is stated at the time that the expert evidence is proposed to the court.
After submission of the expert’s written report, the court forwards the report to all the parties and they can challenge it or request clarifications during the evidence stage. The court can order the expert to give additional explanations, either verbally or in writing, with the latter being the most frequently chosen option.
In cases of medical malpractice, expert opinions constitute a key element in determining whether professionals have breached the duty of care and, as a general rule, the courts rely on the opinions of medical experts to be able to issue a judgment.
Once the evidence stage is closed, both parties may submit a brief on the evidence within a common term of six days for each party. Judgment should be issued within a term of 40 business days. Any party may file an appeal (without providing grounds) within five business days of receipt of notice of the judgment. A further pleading providing the grounds of the appeal should be filed within 10 business days of receipt of the dossier by the court of appeal.
The Argentine legal system recognises non-judicial dispute resolution procedures, the most common being mediation and arbitration in law or equity.
Within the city of Buenos Aires, Mediation Law No. 26,589 stipulates that mediation proceedings should take place before publicly or privately appointed mediators. These mediators are not empowered to hand down decisions, only to bring the parties together to attempt to reach an amicable settlement. To date, very few provinces have established this mechanism as mandatory. In the event that no agreement is reached, the plaintiff is entitled to bring the case before the courts. If, on the other hand, an agreement is reached, its execution is compulsory for the parties, who in cases of breach may seek judicial enforcement.
Mediation proceedings aside, there are also several permanent arbitration tribunals applying their own procedural rules and with the capacity to issue awards. The main advantages of these permanent arbitration tribunals is their expertise in the resolution of certain disputes, the flexibility of their rules of procedure and the fact that awards are handed down in a shorter time frame than is the case in ordinary judicial courts. Additionally, costs and expenses tend to be lower than those incurred in judicial proceedings. However, these tribunals cannot be used in professional liability cases.
Finally, as regards court costs and legal fees, the general principle under Section 68 of the NCCPC is that the losing party bears all court costs, including those incurred by the opposing party. However, the court may find reasons to exempt the losing party from the obligation to pay the costs of the proceedings, either fully or partially.
iv Remedies and loss
Section 1740 sets out the principle of full compensation of damage.11 Although the specific damage to be compensated is examined on a case-by-case basis, the most common items admitted by Argentine courts include compensation of physical damage, loss of earnings or lost wages, and pain and suffering.12
Under Argentine law, as a matter of course, an appraisal is required to establish the economic damage caused, comparatively weighing up the situation that the damaged party was in before and after the given event or fact.
In cases of civil liability, compensation of damage resulting in injuries or physical or psychological disability is calculated according to a mathematical formula: the judge must award the damaged party an amount sufficient to cover the diminution of his or her capabilities to perform productive activities, with the awarded amount reaching exhaustion upon conclusion of the term in which the affected party might have reasonably continued to perform such activities.13
No punitive damages are applicable to professional negligence, unless the claim falls within the scope of the Consumers Act.14