Medical Malpractice Liability in Brazil

 

A Brazilian study shows an alarming number of deaths caused by medical error, this situation gave rise to an increasing number of lawsuits. Since it's hard to determine whether a death was caused by an error or other reason such as a particular patient condition, caution is advised when seeking accountability. [1]

In order to clarify the medical community and patients, Marello Attorneys at Law explains how the Brazilian Courts are deciding this matter.

 
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Medical Error

"Medical error" is a human flaw in healthcare that caused harm to the patient. Despite the name, it's also attributed to other professionals such as nurses, dentists, nutritionists or even the hospital administration.

It is only possible to point out an "error" after a thorough analysis, since the method of care varies according to a patient condition, the material at disposal and other variables. 

Hence, before the patient or the family takes any legal action or press charges, it is important to consult another healthcare professional and a lawyer. In Brazil,  Civil liability seeks compensation for actual damages caused to the victim (brazilian law doesn't adopt punitive damages).

Proximate Cause

A healthcare professional is held accountable if a cause and effect relationship is demonstrated. The physician and hospital are only responsible for actions or negligence attributable to them respectively. 

Negligence - Physicians

The Brazilian Consumer Code states that professionals, such as doctors and dentists, can only be held accountable if the plaintiff demonstrates intention, malpractice, recklessness or negligence (article 14, § 4 of the CRC).

A physician assumes the obligation to provide accurate care, in line with medical science. Medical care does not ensure health restoration, but has to pursuit healing using the best technique and diligence at disposal. Therefore, it's up to the plaintiff to demonstrate that the physician acted with malpractice, negligence or recklessness.

However, cosmetic procedures, such as plastic surgery, are different. The surgeon hired to perform a plastic surgery commits to a final result, a beautifying effect. In this case, suffice that the plaintiff demonstrates that the promised result wasn't achieved . Nevertheless, the physician's responsibility remains subjective, as long as the defendant proves that he didn't acted with intent, malpractice, negligence or recklessness he won't be he accountable for damages.[2]

Statute of Limitations

The patient or the family has five years to file a civil lawsuit from the moment the damage becomes known . [3]

Have doubts? Learn more in the next post or contact us

 
 

[1] https://veja.abril.com.br/saude/erro-medico-mata-mais-que-cancer-no-brasil/ ; http://g1.globo.com/jornal-hoje/noticia/2017/11/falhas-em-hospitais-matam-mais-que-o-cancer-violencia-e-o-transito.html ; http://www1.folha.uol.com.br/cotidiano/2016/08/1802579-erro-medico-provoca-sequelas-e-disparada-de-processos-na-justica.shtml ; http://extrapauta.com.br/casos-de-erro-medico-disparam-na-justica-do-df/

[2] REsp 1.395.254/SC, DJe 29/11/2013; REsp 1.180.815/MG, DJe 26/08/2010; REsp 236.708/MG, DJe 18/05/2009

[3] AgInt no AREsp 1.127.015/MG, DJe 27/10/2017; REsp 1.020.801/SP, DJe 03/05/2011