The health professional's liability

By: Tertius Rebelo
Tertius Rebelo

It is important to mention that for many centuries the role of the physician was clothed with a religious character and a mystical aura, attributing to God's purposes the health and death of the patients.

More recently, at the end of the last century and the beginning of this century, the doctor was seen as a professional whose title guaranteed him omniscience, family doctor, friend and counselor, figure of a social relationship that admitted no doubt about the quality of his services, and even less, the judicial questioning about his professional acts.

The circumstances today are completely different. Social relations massified, distancing the doctor from his patient. The very denomination of the subjects of the relationship was changed to user and Service provider, seen from the perspective of a consumer society, increasingly aware of its rights, real or fictitious, and more demanding about results.

No wonder we see a worldwide slow medicine movement, which seeks to retake the personality and humanization in health care.

In recent years, the number of lawsuits against doctors and health professionals has been increasing alarmingly. There are those who believe this stems from ineffective and crappy treatment. However, others believe that justice has been trivialized by patients.

This is a scenario that has become everyday when dealing with the daily practice of medical practice and the evolution of the doctor's relationship with his patient has been gaining unusual contours that have a significant impact on the subjective rights of the subjects involved in the act of “giving” health services. to receive them.

On the one hand, there is the health professional who, no doubt, is no longer - at least from the factual point of view - in a hierarchical (paternalistic) overlapping relationship with his patient and often linked to contracts. related and complex nature, in which there is a mass production, with remuneration below the desired by these professionals, whose effects are invariably harmful to the health system as a whole.

On the other, we have the patient "modern", which has access to a wide range of search tools (with the internet, smartphones and Google, among other search engines and Apps), which increasingly require specific information about your health status and possible treatment alternatives - as well as “thinking” that understands the medical scientific aspects of your disease.

In addition, patients' expectations have expanded to the point where the patient believes they have a “right to cure”; if it does not occur, then a medical error is suspected.

This is also due to the patient's easy access to medical information and the media pressure on health cases (the media's willingness to turn misfortune into a scandal); as well as ease of access to justice and free of charge deferrals for most patients who sue doctors.

It is important to mention that dissatisfaction resulting from a treatment does not, by itself, generate legal responsibility, because health treatments, in theory, are an obligation of means and not of result (objective liability). Still, merely dissatisfied patients and family members go to court to try to obtain a pecuniary reparation.

The notorious term “medical error”Has become popular in recent years, but is not always used properly and is often confused with“ failure

care, unpredictable bad outcome, medical complications ”, among other concepts.

Consequently, the civil remedies involving doctors and hospitals have multiplied in the Brazilian courts.

The point is that this new doctor-patient relationship has overwhelmed the judiciary with new actions of medical error. According to the 2018 Health Judicialization report produced by the National Council of Justice (CNJ), we found a frightening number of lawsuits filed for “medical errors”, which reached a total of 83.728making up 230 claims concerning medical error filed daily in our country, which indicates an average of 9.6 actions for medical error every hour.

It is in this normative and social context that the medical professional is inserted, acting in an area particularly vulnerable to accusations, be they civil, administrative, ethical-professional and / or criminal, being surrounded by potential risks, deriving from his actions or omissions. and with the added burden of dealing with stressful environments (scrapped public hospitals) and often poorly collaborative patients.

O 2nd Year of Hospital Assistance Safety in Brazil, produced by the IESS and the Feluma Research Institute of the Medical Sciences College of Minas Gerais brings alarming numbers about health care in Brazil, where there are records that every hour, public and private hospitals in Brazil, there were six deaths resulting from the so-called “serious adverse events” caused by errors, care or procedural failures or infections, among other factors.

According to the Federal Council of Medicine, the “medical error” can be conceptualized as “the harm caused to the patient by the physician's action or omission in the practice of the profession, characterized as malpractice, recklessness or negligence, and without the intention of committing it. . It is improper professional conduct that supposes a technical non-observance capable of causing damage to the life or health of others ”.

The Liability

The term “Responsibility” derives from Latin: “answer" Which brings us to the idea of “responding to something”, that is, taking responsibility for the restitution of something or its compensation.

Responsibility under the law is therefore nothing more than a secondary obligation - a successive legal duty - to assume the legal consequences of a fact, which consequences may vary (compensation for damages and / or personal punishment of the injuring agent) of according to the injured interests.

In fact, civil liability is the application of measures that oblige a person to repair moral or property damage caused by third parties, by reason of an act committed by him, by a person to whom he is responsible, for something belonging to him or simply. legal imposition.

This civil liability is based on the fundamental precepts described by Eneu Domicio Ulpiano, Roman jurist: "Honeste vivere, neminem laedere, suum cuique tribuere" (To live honestly, not to harm anyone to attribute to each one what belongs to him).

That is, from this maxim of living honestly we had an improvement to the duties of objective good faith and to respect the contractual relations (before, during and after the execution of the contract) in order not to cause harm to third parties.

 Therefore, it is possible to infer that the Liability generates indemnity consequences as a result of certain events.

The institute of civil liability is an integral part of compulsory law, since the main consequence of the practice of an unlawful act is the obligation that causes the plaintiff to repair the damage, an obligation of a personal nature, which is resolved in losses and damage.

The civil liability that results from the human action presupposes the existence of a conduct volunteer, O unjust damage suffered by the victim, which may be patrimonial or off-balance sheet; The causal relationship between damage and agent action; O attribution factor liability for damage to the agent, subjective (guilt or willful), or objective (risk, equity, etc.)

Civil liability is governed by art. 927 of the Civil Code which states that:He who, by illicit act (arts. 186 and 187), causes harm to another, is obliged to repair it. ”

Already the arts. 186 and 187 of the same code bring the concepts of illicit act and abuse of rights.

The liability of medical professionals

Tangent to the subject and despite its apparent legal complexity, we can conceptualize the physician's civil liability as being the “harm” of material, moral, aesthetic and informational order that the physician is obliged to repair (due to wrongdoing) when because of the exercise of his profession.

The legal nature of the provision of medical services, as well as the exercise of medicine itself, is, as a rule, contractual (elective care) and non-contractual (urgent and emergency care) and, as a rule, it is an obligation of (not of specific result), since The professional is not committed to achieving a definite result, but to providing conscientious services in accordance with good medical technique and within available scientific knowledge and resources.. For we know that countless variables can influence the outcome, as each organism may react differently to the same treatment (idiosyncrasies), among other random factors involving medical practice.

In addition to this responsibility on your own, the doctor may respond by the act of another, or by the fact of the things he uses in his service.

As done, in the obligation of environment, the professional undertakes to use his available knowledge and techniques to achieve the best possible result, but he is not obliged, however, to guarantee it and, therefore, there is no presumption of guilt. On the other hand, in the obligation to result, the professional contractually assumes that a purpose will be achieved, committing to obtain the result (as in plastic surgery, radiology and anesthesiology.

Civil liability, as a rule, is governed by two distinct systems, but which constantly dialogue with each other, namely: a) the Consumer Protection Code system - law 8.078 / 90 -; b) the Civil Code system - law 10.406 / 02. This is the general framework, which is based on current legislation. In this sense, the Civil Code, in art. 951, and the Consumer Protection Code, in art. 14, § 4, provide that the civil liability of the liberal professional is subjective in nature, since it requires proof of the subjective element & #8220; culpa & #8221 ;.

O Article 186 of the Civil Code establishes the rule of subjective civil liability. The agent can only be held responsible when he or she is guilty of not respecting an objectively due duty of care. In this context, we have as forming elements of the obligation to repair: the existence of an action or omission, the damage, the guilt and the causal link between the conduct and the damage.

On the other hand, if no form of guilt is evident - negligence (not doing what should be done), recklessness (doing what should not be done) or malpractice (doing badly what should be done well) - ceases to exist The physician's liability, due to unexpected and unknown results that may arise.


It should be noted that both laws (Civil Code and Consumer Protection Code) have been in force for a long time and yet this matter is still undergoing constant changes. One of the reasons for this change stems from the interpretation made by the judiciary of the positive rule. This is because, to apply a legal rule in a specific case, the law enforcer must interpret it in order to seek its meaning and scope.

Indeed, the doctrine and decisions of the Brazilian courts have pacified the understanding that this legal relationship is, as a rule, consumerist in nature (that is, the provisions of the Consumer Protection Code apply. This position is the object of this legal relationship, which is the provision of a specialized service by a liberal professional (doctor) to the service taker (patient).

Therefore, it is clear that the doctor, when providing service to patients, does so as a service provider. This change in the normative system governing the matter, due to the migration of its discipline from the Civil Code to the Consumer Protection Code, led to several transformations. 4.

And, based on the principle of objective good faith, doctrine and jurisprudence have been emphasizing that one of the physician's main duties is the duty to convey information to the patient accurately and clearly about their health condition, as well as their existing treatments, which treatment the specialist believes to be the most recommended for that case, and what risks this will entail (information duty).

From this information, it will be up to the patient to choose the treatment, giving his consent for any intervention, perhaps necessary. This is the general rule, because it is certain that in emergency situations, when there is a risk of death, the health professional cannot wait for the patient's consent, having the professional duty to act.

Proof that all information was properly provided to the patient and that the patient consented to the proposed treatment rests with the physician. For this reason, many physicians have used the delivery to their patients of a written document containing this information, as well as formalizing their consent to the procedures to be adopted, which is called taking the patient's free and informed consent by formal and oral means. in written document.



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Tertius Rebelo

Specialist in Medical and Health Law.
Postgraduate in Civil and Business Law. Experience in civil and criminal actions and administrative procedures involving health professionals and companies. Member of the Special Committee on Medical Law and Health of the Federal Council of OAB (2016-2019); Member of the Commission on the Right to Health of OAB / RN (2012-2019); Member of the TJRN Executive Health Committee (2016-2019); Member of the Medical and Health Law Commission of ABA - Brazilian Association of Lawyers (RN); Member of the Review Committee of the Code of Medical Ethics in RN; Member of the World Association for Medical Law; Member of the Association of Lawyers of RN - AARN; Speaker on Medical Law, Health Law and Bioethics; Invited Professor at the Medical School of UFRN and UnP (RN); Professor of Specialization in Medical and Health Law at UNI-RN, UNIFACISA (Campina Grande / PB) and Julio Cesar Sanches Institute (Tocantins).