Medical Malpractice Liability in Brazil II

 

We’ll continue explaining how Civil Liability for medical error works in Brazil, focusing on the responsibility of Hospitals, Laboratories, Health Plans and Government.
 

 
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Hospital Liability

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 [1].

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.) [2].
 


 
 

Laboratory Liability

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. [3]
 

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Health Insurance Liability

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 [4], with hospitals and accredited physicians, according to the Principle of Solidarity between providers of the same chain of supply.
 


Public Administration Liability

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 hospital, laboratory, health plan or Public Power (Union, State, City, Municipality) from the moment the damage is known. [7]

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

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

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

[4] REsp 866.371/RS, DJe 20/08/2012; REsp 1.359.156/SP, DJe 26/03/2015

[5] AgRg no REsp 1.550.812/RS, DJe 16/11/2015

[6] 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

[7] AgInt no AREsp 1.127.015/MG, DJe 27/10/2017; REsp 1.020.801/SP, DJe 03/05/2011; REsp 1.251.993/PR, DJe 19/12/2012