Clipping of news on Brazilian Culture, Law and Citizenship
01.14.2016
This article was translated by an automatic translation system, and was therefore not reviewed by people.
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The plastic surgeon committed to the patient to achieve the desired aesthetic result
The Superior Court of Justice (STJ) have understanding that the relationship between the medical professional and your customers creates a contract "obligation of result". As court decisions, the plastic surgeon, by offering its services, is committed to achieve the desired aesthetic result. If there are flaws in the procedures or the results are not obtained, the customer can trigger Justice to repair any moral and material damages.
"According to many precedents, cosmetic plastic surgery is an obligation of result, since the goal of the patient is just improve your appearance, pledging the surgeon to provide you the desired result," the court ruled to analyze the AREsp 328110.
"What matters to consider is that the professional in the field of plastic surgery, today, promises a certain outcome (incidentally, this is their core business), predicting even with details, this new aesthetic result sought. Some are used even computer programs that project the simulation of the new image (nose, mouth, eyes, breasts, buttocks, etc.), through assembly, chosen on a computer screen or printer, so that the customer decide. It establishes no doubt among medical and contractual relationship patient outcome that must be honored, "define the doctrine.
Brazil has, alongside the US, the largest number of such procedures: each year are held in the country over one million cosmetic procedures, according to the Brazilian Society of Plastic Surgery (SBCP). Among the most common are surgery to remove localized fat (liposuction), silicone implants for breast augmentation (breast lift) and surgery to lift the nose (rhinoplasty).
Court decisions on this matter are available by search Ready, on the website of the Supreme Court under the Civil Liability theme of professional malpractice. The tool provides readily available to relevant legal issues consultations, as well as the trial of notorious cases judgments.
Reversal of the burden of proof
The Supreme Court's case law holds the understanding that the obligations of result, as in the case of cosmetic beautification surgery, it is up to the professional to demonstrate that any failures or harmful effects (both in aesthetics as with regard to health implications) related to the surgery took place factors unrelated to his performance. This verification is done through technical expertise and reports.
In the judgment of REsp 985,888, the court ruled that "surgical procedure for aesthetic purposes, although the obligation is the result, we do not see strict liability for the failure of the surgery, but mere presumption of medical fault, what matters the reversal of the burden of proof, being the professional exonerate it (delete it) in order to exonerate himself from contractual liability for damage caused to the patient, due to the surgery. "
"Do not deprive yourself, so the doctor the possibility to demonstrate by admissible evidence, where the harmful event has elapsed, for example, force majeure, fortuitous or if even the sole fault of the 'victim' (patient) "the court ruled in REsp 236708.
Cases
A plastic surgeon from São Paulo was sentenced to pay further surgery, in addition to indemnify 100 minimum wages a client who underwent cosmetic procedure for breast reduction. The Court of São Paulo recognized in the doctor's actions "the aesthetic character of injury result of the intervention in the breast of the patient, the left scars, as well as irregularity in size and contour. From another part, not have reached the aesthetic aspiration brought to the author suffering that is intuitive, need not be proven. " By analyzing the resource (REsp 985 888), the court upheld the conviction of the doctor. "There was no warning to the patient about the risks of surgery, and the professional has not established the occurrence of unforeseeable circumstances."
In another decision (REsp 1,442,438), STJ ministers denied claim for compensation of a resident of Santa Catarina, underwent surgery for breast implants. She expressed frustration with the procedure and pointed out the appearance of scars. In the decision, the Supreme Court ruled that the doctor's performance was not causing injury. "Despite the recognition that plastic surgery is characterized as an obligation of result, it is observed that in the case, was removed the alleged damage. Common instances by expert evidence analysis, considered that the result has been reached and that any dissatisfaction idealized result was due to complications inherent to the personal condition of the patient, such as conditions of the skin and breast tissue. "
Guidance
The customer must be informed in advance by the professional of all possible risks of the procedure, warn the consumer protection agencies. The SBCP recommends interested in this type of procedure that they are aware of the professional's choice and the place where the surgery will take place. The organization guides the search for information on the proper enabling professional and also make sure the condition of the property, giving the existence of license and business license.
Source: STJ
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This article was translated by an automatic translation system, and was therefore not reviewed by people.