THE EVIDENTIARY CONSTRUCTION OF DAMAGE IN WRONGFUL BIRTH ACTIONS: LEGAL LIMITS TO THE INSTRUMENTALIZATION OF LIFE IN MEDICAL LIABILITY

Abstract

The article analyzes the evidentiary configuration of unlawful damage in wrongful birth legal actions  in the Colombian health field, from a procedural, constitutional and evidentiary perspective. The study questions the theory that conceives life as a compensable damage, considering it incompatible with the nature of medical activity and contrary to the principles of legal certainty and proportionality. Based on the examination of the evidentiary reasoning, the reversal of the burden of proof, the imposition of obligations of result and the use of complex evidentiary means, it is proposed that these actions should be redirected towards the analysis of the omission of the duty of medical information. The research adopts a qualitative approach, with a deductive and critical hermeneutical method, supported by doctrine, jurisprudence and national and international regulatory sources. It is concluded that a rigorous application of the principles of the law of evidence and a rational judicial motivation allow the protection of the fundamental rights involved, without instrumentalizing human life as an object of compensation.

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