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.

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]

good lawyer brazil medical malpractice tort law — Hospital Responsibility

It is advisable to hold hospitals accountable, as they have more assets capable of responding to damages

Hospital Liability in Brazil

Hospitals and clinics in Brazil are responsible for the performance of their staff. It’s actually advised to hold hospitals accountable, rather than doctors or nurses, since they usually have more assets to answer for damages. However, the hospital's liability for a physician's error remains subjective, intention, malpractice, recklessness or negligence must be proven.

On the other hand, a hospital isn’t accountable for tort caused by a physician who only rents the hospital space to perform a surgery and isn’t part of the staff [3].

There will be an objective responsibility, with no need to prove fault, when the fault arises from the services related to the hospital service, such as: patient stay, facilities, auxiliary equipment and services (nursing, surgical instrumentation, hygiene, surveillance, etc.) [4].

Laboratory Liability in Brazil

Regarding Laboratories, they are accountable for a wrong test result. Labs are obliged to deliver accurate results. The patient (consumer) has a legitimate expectation of accuracy in the conclusions drawn in the medical reports, therefore, , therefore, if the lab test was wrong, the pacient can sue.

In spite of that, because the lab doctor works only as the laboratory employee, even when signing the exam, he/she does not respond by false diagnosis to the consumer (patient), since he/she isn't considered a supplier. [5]

Health Insurance Liability in Brazil

If the health insurance contract establishes that the patient can freely choose the doctors and hospitals (free choice) and will be reimbursed of expenses, the insurer has no responsibility for a medical error. Since there was no indication of professionals accredited or directly linked to the insurer. So only the doctor and / or hospital are accountable for a medical error.

On the other hand, if the health plan maintains hospitals and employs doctors or indicates a list from which the patient has to choose from, it has joint responsibility for the poor service [6], with hospitals and accredited physicians, according to the Principle of Solidarity between providers of the same chain of supply.

Public Administration Liability in Brazil

Medical errors occurred in public hospitals are the responsibility of the Public Administration that manages the facility (Municipal, State or Federal). Although, in Brazil the whole Public Administration is responsible for ensuring free health care, each administrative division is responsible for the damages caused under its surveillance. For instance, the Federal Government isn't responsible for a medical error that occurred at the Municipal Hospital Miguel Couto, since it is administered by the Municipality of Rio de Janeiro.

Still, medical errors occurred in a private hospital that receives public funds through the Unified Health System (SUS) are the responsibility of the municipality, not the State or the Union. Article 18, X, of Law nº 8.080 / 1990 states that the municipality is responsible to contract with private entities to provide free health services, and to monitor and evaluate their implementation.

Statute of Limitations

The patient or his / her family has 5 (five) years to file a civil lawsuit against the doctor, hospital, laboratory, health plan or the Brazilian Government (Union, State, City/ Municipality) from the moment the damage is known. [7]

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[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 ;

[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] REsp 908.359/SC, DJe 17/12/2008

[4] REsp 1.216.424/MT, DJe 19/08/2011; REsp 1.621.375/RS, DJe 26/09/2017

[5] REsp 1.386.129/PR, DJe 13/10/2017

[6] REsp 866.371/RS, DJe 20/08/2012; REsp 1.359.156/SP, DJe 26/03/2015; AgRg no REsp 1.550.812/RS, DJe 16/11/2015; AgRg no CC 109.549-MT, DJe 30/6/2010; REsp 992.265-RS, DJe 5/8/2009; EREsp 1.388.822-RN, DJe 3/6/2015; AgInt nos EDcl no REsp 1.428.475/PR, DJe 02/09/2016

Medical Malpractice Liability in Brazil