Award of the National Commission of Medical Arbitration, direct protection proceeds against him

The National Medical Arbitration Commission –CONAMED– (each State has a local Commission), it is a deconcentrated organ of the Federal Ministry of Healthcreated since 1996 to, among others, contribute to solve in a friendly manner and in good faith conflicts that arise among patients of medical services and their providers, through alternative dispute resolution mechanisms, such as the arbitration procedure.

He arbitration It is an alternative conflict resolution mechanism through which the parties subject the solution of a dispute to the decision of one or more arbitrators, which concludes with the issuance of an award.

Regarding medical arbitration, there is the Regulation of Procedures for the Attention of Medical Complaints and Expert Management of the National Medical Arbitration Commission; however, it does not contain a procedure for alternative dispute resolution mechanisms approved for CONAMED and the rest. of the country's medical conciliation, mediation and arbitration commissions.

The awards issued in arbitration proceedings, by themselves, do not have the legal force and authority to enforce their determinations, which is why they must be approved by a competent judicial authority.

Precisely for this reason, the Medical Arbitration Commission had not been considered as an authority for the purposes of the protection, given the lack of that characteristic in its resolutions or awards.

This came to change with the jurisprudence of the area: NATIONAL MEDICAL ARBITRATION COMMISSION. THEIR ARBITRATION AWARDS ARE ACTS OF AUTHORITY FOR THE PURPOSES OF THE AMPARO TRIAL published in the Judicial Weekly of the Federation and its Gazette in 2001, digital record: 188434.

This jurisprudence considered that the awards issued by the National Medical Arbitration Commission, in its capacity as arbitrator, constitute acts of authority for the purposes of the amparo trial, since, although it acts at the will of the parties, it also exercises decision-making powers on behalf of the parties. of the State and as a public entity establishes a relationship of supra to subordination with the individuals who voluntarily submit to the arbitration procedure, since when settling the issue debated between the provider of the medical service and its user, it unilaterally and imperatively creates, modifies or extinguishes, by itself or before itself, legal situations that affect their legal sphere, without the need to go to judicial bodies or obtain the consensus of the will of the affected party.

This criterion is reinforced and expanded with the relevant thesis, published this Friday, February 16, 2024, in the Judicial Weekly of the Federation under the heading: ARBITRAL AWARD ISSUED BY THE NATIONAL MEDICAL ARBITRATION COMMISSION (CONAMED). THE DIRECT AMPARO TRIAL PROCEEDS AGAINST THEM. Digital registration 2028213.

This thesis addresses the systematic interpretation of articles 107, section V, section c), of the Political Constitution of the United Mexican States, 34 and 170 of the Amparo Law and 37, section I, section c), of the Organic Law of the Judicial Power of the Federation (repealed), supported by the considerations issued by the Second Chamber of the Supreme Court of Justice of the Nation in the contradiction of thesis 14/2001-PL, from which the jurisprudence theses were derived 2a./J. 56/2001 and isolated 2a. CCXIX/2001.

Determining that the arbitration award issued by CONAMED can be challenged through the direct amparo trial, since it has the force of res judicata, constitutes a materially jurisdictional act and entails execution, as it translates into a substantive resolution of the issues submitted to its decision, which does not require homologation through judicial approval that gives it legal force.

The fact that the direct amparo trial proceeds against the arbitration awards issued by the National Medical Arbitration Commission without having been approved by a judicial authority, gives them a totally different legal consideration, as well as the body that issues them, putting them in an equal level to that of final sentences and resolutions issued by properly jurisdictional authorities, which will undoubtedly lead to greater recognition of the value and importance of alternative means of dispute resolution in our legal system, which they had not previously enjoyed. .

As always, a pleasure to greet you, hoping that these few letters have been to your liking and, above all, useful. Until next time!

More from the same author:

Graduate in law from the Sinaloa Free School of Law, master in constitutional law and amparo and master in commercial and business law, with honorable mention, from the Universidad Panamericana, Guadalajara campus. He graduated with honorable mention from the postgraduate courses in civil and commercial procedural law, law of obligations and contracts and tax law taught by the Universidad Panamericana, Guadalajara campus and is a specialist in the areas of administrative, civil, family, commercial, agrarian, protection , notarial and corporate. He is studying the AD2 Senior Business Management program at IPADE. He is director of the legal services company LMA, Integradora Legal, based in Culiacán and Mazatlán. Member of the Mexican Bar Association, AC, he was president of the steering committee and founder of the Sinaloa chapter, and currently a member of the national council of said association, he also belongs to the American Bar Association. He is a professor at the Sinaloa Free School of Law, and serves as an advisor to the advisory council of the State Human Rights Commission of the State of Sinaloa. He was secretary of agreements of the First Criminal Court of La Paz and external legal advisor and Interim Secretary of the City Council of the Municipality of Rosario.

see more