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1. INTRODUCTION
Brazilian society over the years has undergone a kind of revolution in their customs. Driven with the process of urbanization and industrialization of major cities increasing, new jobs have emerged, calling for a more professional and continuous improvement. Another point to be observed is on the expectation of life, because with the advancement of medical science caused a significant increase in longevity, including a significant improvement in quality of life.
Today, medicine is considered a social fact, as social and public interest is the health of the community. Interest and that right enshrined in the Universal Declaration of Human Rights [1] [1], which includes the charters of civilized nations.
The function of law is regularly conduct already provided in law. The medicine contains an accumulated knowledge, which, unfolding translates into "conduct or procedures to be observed by the medical profession," bringing thus a specific act of the physician to treat his patient in order to achieve cure.
However, there is an intertwining of dawn of the standard technique (or therapeutic procedure) with the law, because the doctor is not God, so he can and should be judged by their actions because of their professional shortcomings. And precisely this point that enters the law, seeking state and parameters of the legal consequences of the professional conduct of Medicine, both in crops of civil and criminal liability, as in professional ethics, through the Federal and Regional Councils of Medicine.
Include calls that this paper dealt with and brief on the issue of medical liability, since to be a very large, it would be impossible to complete its total desiccation, since the scope of it is not exhaust all the doubts about it, but to discuss the most significant changes and issues pertaining to the subject.
2. LIABILITY
2.1. Concept.
Due to large mister that conceptualize the liability I refer to the lessons of Caio Mário [2] [2], who with his wisdom notes:
"The liability is the realization of abstract reparability of damage in relation to a taxpayer's legal relationship is formed.
Whether the ground is to blame, or is independent of this. In any case where there is a subordination of a taxpayer to determine a duty of compensation, there is a liability. "
Thus, "the idea of liability based on the principle of multissecular neminem laedere (if anyone should harm) [3] [3], which for the Romans from this principle could be in any situation-how to behave in relation to the others.
2.2. Assumptions.
Any obligation to indemnify, arises due to certain factors, which are called elements or assumptions of liability.
However, such is the difficulty of their characterization of conditions for the characterization of the liability, which I refer to the teachings of Roberto Senise Lisbon [4] [4], which configures how subjective assumption of liability: the agent, the victim, the relationship of causality, guilt and deceit.
In examining the art. 186 of the Civil Code, which is responsible for disciplining the tort liability, we can observe the evidence of four (4) that are considered essential elements: action and omission, negligence or willful misconduct of the agent, the relationship of causality and damage. Therefore, we will discuss these assumptions in order to better understanding on the subject.
I) Action or inaction of the agent.
The action is the human act, the Commissioner or silent, unlawful or lawful, voluntary and objectively fault of the agent or third party, or the fact of animal or inanimate thing, causing harm to others, creating a duty to satisfy the rights of injured.
II) Dolo or fault of the agent.
Dolo is a violation of a legal duty intentionally and deliberately. Is the wish of the agent to commit the unlawful. As the blame for the failure on the consequences of such conduct.
In our legal system, but force the general idea of guilt as the basis for liability, there are some cases where it is dispensable, such as the responsibility of the hospital before the patient, regard responsibility to that objective.
Art. 186 of the CC establishes the tort as a source of the obligation to indemnify the damage caused to the victim. As you see, is the principle of public policy which requires the author of a tort is liable for damage caused by paying the due compensation.
III) for the causal
There is no obligation to talk about without indemnify to note that the link between the conduct (negligent or Commission) of the agent causing the damage and injury which the victim endured. There should be a perfect relationship between the cause (action or omission) and effect (damage). No such relationship, absent a duty to repair.
Causes are the exclusive liability for breaking the causal link: the exclusive fault of the victim, force majeure and fortuitous event, thus removing the obligation to indemnify the agent.
IV) Damage
Although the art. 186 of the CC has maintained the same structure of previous diploma, differed from the previous Article 159 of the Code to modify the alternative "or" the particle additive "and", as we will see:
Article 159, CC (1916): One who, by voluntary action or omission, negligence or recklessness, violating law, "or" causing injury to others, is obliged to repair the damage.
Article 186 of CC (2002): One who, by voluntary action or omission, negligence and imprudence, violating law "and" harm to others, even if only moral, commits an unlawful act. "
Deadline compliment, I believe that in law there are no unnecessary words, so I think the code by introducing the particle additive "and," more than made clear its desire, or just commit an unlawful act and is forced to indemnify the person who cause damage, be it moral or material, therefore, would bear no sense of something which was not observed injury.
It is therefore of utmost importance that, to characterize the tort, should be noted the figure of the damage.
3. LIABILITY objective and subjective
The strict liability is based on the theory of the risk created, because as the popular saying: "who receives the rooms, should bear the nuisance." Thus, the strict liability waives the fault, while the victim only to prove the damage and read between the activity of the causal agent and the offense suffered.
Similarly, Venous stresses [5] [5]:
"The theory of risk appears in the history of law, therefore, based on the exercise of an activity within the idea that those who perform certain activities and profit from it directly or indirectly liable for damage it causes, regardless of their guilt or their agents. The principle of liability without fault anchored in a principle and equity: who receives the rooms of a situation must also bear the annoyances. The exercise of an activity that may pose a risk in itself requires indemnify the damage caused by it. "
In addition to subjective responsibility is one that depends on the behavior of the subject, based culpable action or omission of the agent, it is said, not enough so that there will be a requirement to compensate the damage and causal link, we need to verify that the offender acted with intent or fault.
Thus, Caio Mario [6] [6] points out:
"Once considered the theory of responsibility in building subjective assumption of the obligation to indemnify, or to repair the damage, the fault behavior of the agent, or simply the fault, including in its proper context to blame and culpability of the agent."
However, proof of fault or intent is often difficult. With that our positive law allows, then, in specific cases, some cases of strict liability or liability without fault as we have seen elsewhere.
4. MEDICAL LIABILITY.
4.1-Historical.
Since the most ancient history, the concern with health has always been present. In ancient times, is not conceived the medical activity itself, with only people dedicated to the healers, not based on scientific knowledge, which comes through the study of certain phenomena, but the empirical knowledge, with the art of healing in use of potions usually extracted from herbs, as well as in treatments with natural remedies tested in individual patients.
However, if the cure does not happen, the blame fell on the "sorcerer", accompanied by charges of incompetence or incapacity.
With this, we can see that from the more remote past, had sanctions due to failure of guilt on the person responsible for curing the patient.
Thus, unless otherwise stated Venous [7] [7] that:
"The concerns about the health back to antiquity. However, the long prevailing empiricism around the pain. He was the magician or priest in charge of patients. Very slow in history to the doctor finally assume its role. "
The Code of Hammurabi [8] [8] (sec 18 BC) is the first historical document that addresses the problem of medical error. His articles imposed the doctor, who had the most attention in the exercise of their profession. In his article, required the physician to ensure the utmost attention and expertise in pursuit of the profession, if he did not, cause more severe penalties that opportunity to the amputation of the hand of the physician. Such sanctions were imposed occurred when death or injury to the patient due to inexperience or poor practice. If the patient was poorly cured, the doctor would reimburse him with a slave or animal.
It noted that, although not entertain the idea of guilt at the time, this conduct adopted by the former is closer and much of modern legal sense, as if the death of the patient or some kind of problem later subjected to treatment by the doctor, causing injury to the patient, do not think the fault of the doctor, and she presumed.
Soon after in Rome, the liability was more general principles that would later be crystallized by more modern legislation, as had previously held the law of retaliation, which is fighting evil for evil, then came the composition of which the voluntary offender at the discretion of the victim, to deliver a sum of money or any object.
After the phase composition of tariffs, under Law of the XII boards, which determined for each case, the value of the penalty to be paid by the offender, survival Law Aquila (year 468) and it begins with the general civil liability .
That same season, also deserves mention Cornelia Law, which established a series of offenses related to the practice of medical profession and the punishment that should be comin. However, with the Lex Aquila in Damn make it a concept of guilt, and have set some species of crime that doctors could make. As a result, there was an obligation to repair the damage, limiting it to economic losses, without considering what today is defined as moral.
Calls include, even in Rome, medicine was still practiced by healers and priests, which happened in the era of primitive humanity, the activity is imbued with superstition supertições and culminating in a dubious credibility. But with advent of the Republic of change for the Empire, were organized professional Corsican, then changing to the existing landscape, with doctors divided into several areas.
In Egypt, the doctors were the largest high social position, enjoying many privileges. These privileges, of which only they had, and by often confused with their own priests.
Doctors in Egypt have a book containing all the rules they should obey. So do not suffer any punishment if injure a patient, provided they follow the book. Were the same, if they were to cure a patient, but their conduct or techniques employed condissessem not with the book, he would be punished.
In short, it would say the same thing that the doctors would always be immune to any kind of punishment, regardless of practice or the outcome experienced by the patient, provided that follow the holy book anything happen.
In the fifth century BC in Greece, through the Corpus Hippocraticum of Aristotelian philosophical construction can be observed for the first time a true study in the medical field.
Thus, it was slowly, forming the principle that medical negligence is not presumed merely because he has not succeeded in treatment, but should be examined based on individualized and followed by the professional conduct. Thus, for the Platonic and Aristotelian, the responsibility of the physician should be evaluated by an expert in the field and by a board of doctors, in essence, is the legal expert of modern times.
And finally in France, where the theory of liability was addressed in depth, the Academy of Medicine of Paris, in the last century, made decision to have only moral responsibility of medical professionals. Such a decision opportunity in a very broad immunity, because in order to characterize the doctor's responsibility was necessary to prove the occurrence of a lack of serious nature, where such burden of proof is always the patient.
The so-called decision, also preached that: a) the judges would not be able to judge matters involving medicine, b) the analysis of medical experts should be accepted in full, since only they had the expertise in the medical area, c) the claims to compensation were considered material enrichment.
However, with the French Revolution made in Jurisprudence in 1832 onwards, moved to accept the thesis of the full responsibility if found to blame the doctor, assuming you can not make professional over others in consideration of liability for acts committed in the exercise. Thus, as is necessary to investigate the blame for certain professions, as well as anyone, also to be the medical activity. Currently, this is the theory in force in France.
4.2. - Distinction between obligations of means and result.
The doctor has taken his responsibility as subjective as the art reads. 14, paragraph 4 of the CDC, the responsibility of professional staff will be established through the determination of guilt.
In order to characterize fully the responsibility of professional, specifically in regard to liability of the doctor, mister is, first, distinguish what is required and means of obligation of result.
The obligation of the second half John Stocco [9] [9]:
"It is the very activity of the debtor that is the subject of the contract. This type of obligation is what appears in all contracts for services, such as lawyers, doctors, advertising etc. Thus, the medical activity has to be exercised in the best possible way with the necessary diligence and standard of this profession for the best result, even this is not achieved. The physician should strive to, use of all necessary means to achieve cure of the patient, although not always achieve it. "
Now the obligation of result concludes John Stocco [10] [10]:
"In the obligation of the debtor to the contrary result, is obliged to reach a certain order without which will not have fulfilled its obligation. Or the result can be flat or bear the consequences. What happens, for example, in the works, transport and for strictly aesthetic surgery and cosmetology. In other words, the obligation of means to end is the activity of the debtor and the obligation of result, the result of that activity. "
Therefore, we must be concluded that the contractual liability of the physician may be assumed or not. The contract does not stipulate the presunsão of guilt, the parameter must be the kind of obligation on to the customer. If the doctor is proposed to achieve a specific result, such as cosmetic surgery, will be presumed guilty if he fails to achieve what was promised. If not reaching the expected result, only left to prove their professional negligence or non-occurrence of unforeseeable circumstances or force majeure. In the case of the client (creditor) it should only show the default, ie demosntrar that the result was not achieved.
4.3. - The medical liability and the Consumer Defense Code.
Law No. 8078 of 11 September 1990, better known as Consumer Defense Code, provides in its Art. 14, liability for damages caused to consumers provided so bad. This legal device, in which strict liability, brings in its heading, the following wording:
"Article 14. The service provider responds, regardless of fault, repairing the damage caused to consumers by defects related to the provision of services, as well as insufficient and inadequate information about your enjoyment or risk."
As previously studied elsewhere, the medical liability is a subjective nature. Thus, the first sight, it would appear that there is contradiction between the already stated in this work and art. 14, caput, of the CDC.
This idea is strengthened if it took into account the provisions in Paragraph 3 of that Article, under which:
"§ 3. The service provider will only be liable if he proves:
I - who, having provided the service, the fault does not exist;
II - the exclusive fault of the consumer or third. "
Check that both devices cited enshrine the strict liability of the provider, which should, prima facie, also cover the medical and other professionals.
However, removing this design provides the § 4, also of Article 14 of that law, that: "Paragraph 4 The personal liability of professionals will be established by the finding of guilt."
Therefore, we conclude that the responsibility of the physician is subjective, it fits perfectly in the figure to § 4 of art. 14 of the CDC. But if this doctor will be in the future to join a clinic or hospital, you have this, liability based on fault, while the clinic or hospital in an objective answer.
5. MEDICAL LIABILITY IN AESTHETIC SURGERY OR REPAIRERS
5.1 - Definition
The restorative or cosmetic surgery is the scope of repair, so artificial, anatomical and functional parts of the body ruined by congenital or acquired deformities, and correct the disharmony of aesthetic order.
Plastic surgery repair search restore lost substances and restore the functions of organs, while rolling to correct defects in certain parts of the body it is the plastic surgery cosmetology or aesthetics.
As I studied elsewhere, in these cases is the obligation of means, ie only if the opportunity or responsibility due compensation if that was agreed is not reached the end of the operation or surgery.
6. DOCTOR PATIENT RELATIONSHIP.
6.1. Duty to inform the doctor to the patient and the patient's consent.
In medicine there is a duty that must be obeyed by the physician. This duty is an obligation to inform his patient or his family about his condition, the method and technique to be used for their healing, in short, everything that relates to treatment, including the risks and chances of cure.
In the case of plastic surgery, or restorative or cosmetology, is no different, with the plastic surgeon must also keep their patients informed about the risks of surgery, as well as the possibilities of success or failure of it.
Moreover, all medical intervention is required, as already seen, the patient's consent, or it is not possible, their family or guardian. As he found, is the doctor, as a rule, exempt from liability.
6.2. Life Vs Religion
The classic example is the patient who suffers a terrible accident and needs with utmost urgency for blood transfusion. Occurs that patient refuses to receive the transfusion on religious grounds. What to do in this case? Make a transfusion even contrary to the wish of the patient and against their religious beliefs, or respect it and let die?
The solution is simple, since, although the Constitution protects freedom of religion, creed or belief, nothing, that is no higher principle is that the principle of protection and the right to life. So, in which case there is the possibility to meet the wishes of the patient through court, the doctors, rather than immediately to transfusion.
Thus, I will conclude with the lessons of Venous Save:
"There is no greater than the preservation of human life, no matter religion, creed or religion."
7. JURISPRUDENCE
"Menu: DAMAGES - DAMAGES moral and material - liability - malpractice - NO OCCURRENCE - ANESTHESIA - preoperative examinations DONE - ACTION DISMISSED - CODE OF CONSUMER PROTECTION - ART.. 6, INC. VIII - Not applicable. - The liability only arises from the doctors fault proved in view have been adopted the system of responsibility by the Civil Code subjective, so no results proved the recklessness, incompetence or negligence, error or the crude, it is removed the obligation to indemnify . - Resource not found. AC RD Ã Ó The Visa, reported and discussed the case of Civil Appeal No. 360533-8, the District of BRASÓPOLIS, and appellant (s): Natale Pereira Martins and surname (a) (the) (the ): EDGARDO GRUEZO KLINGER AND OTHERWISE, IN, in Class, the Second Civil Chamber of the Court of Alçada of the State of Minas Gerais dismiss the appeal. Belo Horizonte, June 18, 2002. Aluízio JUDGE ALBERTO DE ANDRADE PACHECO "
"Menu: AÇÃO indemnifying - malpractice - cosmetic surgery not seen - SUPPORTING DAMAGES - Duty to Indemnify - VOTE VENCE. The fact that the operation was authorized by the SUS does not imply in accepting it as a restorative, as the ally that should the medical evidence through skillful elements that the conviction was necessary to compose anatomically the patient, procedure indicating not only beautiful, especially if the surgeon confesses that the patient looked for aesthetic reasons. Vv: Since the author is to prove desincumbido plastic surgery that has been embellished and shown that it is done through the SUS, which only allows corrective action should be dismissed the claim for indemnification. RD AC Ó The à Visa, reported and discussed the case of infringing Embargoes on Appeal No civil 333.581-7/01 the District of Juiz de Fora, and Embargante (s): ROGÉRIO Ghedini server and embargoes (a) (the) (the): Cinthia PRADO MARQUES, AGREES the Third Civil Chamber of the Court of the State Alçada de Minas Gerais, we reject the ban, beat the THIRD JUDGE vowel. DUARTE DE PAULA (Rapporteur). Belo Horizonte, 06 February 2002 "
"Summary: LIABILITY. ERROR DOCTOR. Finding. Causal link. REPARATÓRIA CONSEQUENCES. VALUES THAT DO NOT CONSIDER HIGH. FEES FOR ATTORNEY. MAXIMUM PERCENTAGE. CONFIRMATION. 1 - If the conduct of finding the missing doctor anesthesiologist and poor choice of direction of hospital where the surgery was recorded for the paralysis that was carrying the "patient", is known etiologic link, which, allied to the huge losses suffered by the victim, are required to repair material and moral losses. 2 - The value of R $ 72,000.00 for damage due to the final sequel of the victim is considered to be appropriate, as a monthly pension of 04 minimum wages. 3 - When all the requests made by the ruling left attended, the fees should be put advocatícia the percentage maximum 20% of the value of the conviction is not justified its reduction. RD AC Ó The à Visa, reported and discussed the case of Civil Appeal No 359561-5 of the District of TUPACIGUARA, and appellant (s): (1st ) HOME HEALTH SAN LUCAS LTDA., (2) GILBERTO DA SILVA LOPES and surname (a) (the) (the): Erly SILVA, REPRESENTED BY THEIR MOTHER MENOR, (still the Judgment) Agreement in Class, the Fifth House Alçada the Civil Court of the State of Minas Gerais, PRELIMINARY AND REJECT, on merit, dismiss both RESOURCES. KUPIDLOWSKI FRANCISCO (Rapporteur). Belo Horizonte, May 23, 2002 "
"Summary: CLAIMS - MEDICAL LIABILITY - INOCORRÊNCIA - sentence MAINTAINED. 1." The provision of medical services, usually, it is an obligation of means and not the result, given that the professional can not provide, except rare exceptions the success of the treatment to which they refer the patient is not exempted, however, the duty of care to care for their minimum technical business. "(RJTAMG 63/384) 2.. The merits of the action of damages for malpractice subsume to prove the guilt of the occupation. Without the statement of the subjective element of liability, whether in the form of incompetence, recklessness or negligence, is rejected compensation liability. RD AC Ó The à Visa, reported and discussed the case of Appeal Civil No 356751-7, the District of sponsorship, and appellant (s): Gerald APARECIDO FERRAZ and surname (s) (a) (s): CARLOS ALBERTO PINTO, AGREES in Class, the First Civil Chamber of the Court of Alçada State of Minas Gerais PARTLY KNOW THE TORT retained and dismissed. dismiss the appeal. NEPOMUCENO SILVA (Rapporteur). Belo Horizonte, 02 April 2002 "
"Summary: LIABILITY - MEDICAL - ligature of Trompia - NEW PREGNANCY - CLAIM OF NEGLIGENCE AND inexperience - lack of guilt. The responsibility of the physician from the guilt established, can not be assumed. The error in the medical procedure of ligation, is not connect the tubes, connect only once or not find them, should, however, be proven the fact. The natural recanalization is a fact that escapes the control of the medical professional. There is a case of incompetence, recklessness or negligence, can not be the doctor responsible for the efficiency of the method of contraception. RD AC Ó The à Visa, reported and discussed the case of Civil Appeal No. 357478-7 of the District of Santa Luzia, and appellant (s): Rosana DA SILVA and surname (a) (the ) (the): Marco Aurélio GUIMARÃES CAMERA, AGREES in Class, the Seventh Civil Chamber of the Court of Alçada the State of Minas Gerais, dismiss. AFFONSO JOSÉ DA COSTA CÔRTES (Rapporteur). Belo Horizonte, 18 April 2002. "
"TAMG --
Case Number: 0351755-5 Organ judge: Fourth House Civil - Action: Instrument of further (CV) -. Rapporteur: Maria Elza Trial Date: 28/11/2001 Data -. Published: Not published, Subject: CODE OF CONSUMER PROTECTION - Technical Summary: CODE OF CONSUMER PROTECTION. HIPOSSUFICIÊNCIA ECONOMIC, TECHNICAL AND INTELLECTUAL CONSUMER HEALTH PLAN TO FRONT. Need for shifting the burden of proof. IMPLEMENTATION OF FUNDAMENTAL PRINCIPLES OF THE CONSTITUTION OF BRASIL. When the consumer is able hipossuficiente in desincumbir is the burden of proving the facts constituting his right or his claim is credible, the magistrate should reverse the burden of proof. In case, the reversal of the burden of proof is required, as the legal requirement laid down in Art. 6, section VIII, the CDC, remains configured. The consumer is hipossuficiente technically, intellectually and economically. The economic hipossuficiência is obvious, because the consumer, by litigate under the canopy of justice charge, has no financial resources to bear the cost of medical expertise. Other hand, it is clear the technical and intellectual hipossuficiência the consumer about the production of evidence of the occurrence of medical errors and flaws and defects in the procedures and medical services / hospitals, mainly due to the ordinary rules of experience show that, almost always there is "a class of medical corporatism" that hinders and sometimes prevents the production of medical expert evidence. Thus, nothing more than legal and reasonable to determine the reversal of the burden of proof, because the health plan, provider of medical services / hospital is in better technical conditions, economic and intellectual competition for the court, since, besides having considerable economic and financial capacity, has the information and technical knowledge of service, and thus greater capacity to produce evidence to suggest the possible causes of their exclusive responsibility (art. 14, paragraph 3 of Law No. 8078/90 ) ";
"TAMG --
Case Number: 0355594-8 - Organ judge: Second Civil Chamber - Appeal: Appeal (Cv) - Rapporteur: Alberto Vilas Boas - Trial Date: 30/04/2002 - Data Publication: not published - Subject: INDEMNITY - Summary Technique: LIABILITY - INDEMNITY - moral - ARBITRARY - malpractice - no job-causation - CHARACTERIZATION demonstrated the effective delivery of services through the use of medical resources available to the patient, it is unnecessary if you perquirir existed or not the entity's employment with the hospital for medical attendants - that determined the hospital and underwent surgery - there remains a view characterized the strict liability under art. 14, the Consumer Defense Code. - Is not necessary that the nursing home has taken direct action in the damage caused to her, because she answered jointly with the medical attendants, and once shown the damage resulting from malpractice, it is a duty to indemnify. " ;
"TAMG --
Case Number: 0375794-4 - Organ judge: Seventh House Civil - Action: Instrument of further (CV) - Rapporteur: Unias Silva Trial Date: 29/08/2002 - Data Publication: not published - Subject: Burden of proof - Technical Summary: shifting the burden of proof - ERROR DOCTOR - THE HIPOSSUFICIÊNCIA AGGRAVATING Law 8078/90 establishes the general rule of reversal of the burden of proof in the face of certain circumstances, no reservations when it has on the subjective responsibility of professionals. The likelihood of this claim or hipossuficiência of the author, allows to the reversal of the burden of proof. V.V. - Summary: CODE OF CONSUMER PROTECTION - Burden of proof - REVERSAL - Not applicable - RULE OF JUDGING - Costing - JUDICIAL ASSISTANCE. The reversal of the burden of proof is a rule of trial, to be applied during the delivery of the award. The reversal of the burden of proof was established in the Code of Consumer Protection, condão is not to require the supplier / service provider of the cost of proof required by the consumer. Assuming the author, applicant's evidence, litigate under the pall of legal aid, payment of fees for expert must be done at the end of the handle and falls on the loser. "
"TAMG - Case Number: 0316920-0 - Organ judge: Second Civil Chamber - Appeal: Appeal (Cv) - Rapporteur: Franco Batista - Trial Date: 03/10/2000 - Data Publication: not published - Subject: LIABILITY OBJECTIVE - Technical Summary: Summary: ACTION FOR INDEMNIFICATION - surgical complications - OBJECTIVE RESPONSIBILITY OF CLINICAL - NO PROOF CAUSATION - MEDICAL LIABILITY - DUTY OF ENVIRONMENT - CULPA - ABSENCE OF ATTESTATION - BURDEN OF PROOF OF AUTHOR - Application dismissed - sentence MAINTAINED. 1 - The provision of hospital service is characterized as consumption, it falls perfectly for the dictates of the arts. 2 and 3, Paragraph 2 of the Code of Consumer Protection, because the clinical picture as a genuine service provider , its liability should be decided on the basis of objective liability, as has the art. 14 of that law. Thus, the burden of proof should be reversed, which is worth saying that the clinic defendant may exempt itself from guilt is proved that the damage caused by the fault of the patient. 2 - In a reversal of the burden of proof, there remains an obligation for the consumer to prove the existence of damage and the causal link between the alleged defect and services, as it is in fact constitutive of their rights, otherwise, should be rejected the request. 3 - The liability for medical error results from negligence or malpractice in the treatment or surgical practice employees, because it is the obligation of means and not result. 4 - Absent any of the essential elements for characterization of the responsibility to indemnify, according to the subjective theory of liability adopted by the Brazilian legislature, namely, the conduct of medical error, the damage actually suffered by the author and the causal link between one and otherwise, there is no need to talk about obligation to indemnify. 5 - Appeal improve "
8. CONCLUSION
As seen in the course of this work, we can observe that liability turns on two theories: the subjective and objective.
The subjective theory has its basis in the fault block. It is the element of tort, around which the action or omission leading to the existence of an injury.
It is our understanding of peace that only exist duty to indemnify if there is a causal link between the fault and result in injury.
Now the objective theory of liability is the risk that its beam. The person responsible for damage indemnify a loss simply because there is not being considered the existence of their guilt, just the causality between the act and the damage to make the repair. The causal link is the fact that the damage has arisen from a particular act or omission. As the concept of guilt will be diluted, the idea of risk is a higher level.
Thus, the theory of risk does not take into account the legal subjectivism and philosophical points of view, therefore, seeks to meet the principle of necessity which contemporary societies are increasingly demanding, or a policy of equality before the sacrifice taxes to the detriment of public interest.
Em primeira análise, dizer que alguém responde por danos causados sem que para isso tivesse culpa, seria de um tom extremamente injusto, mas por outro lado, também nos parece super injusto que uma vítima ficasse sujeita a própria sorte, arcando sozinha com seus prejuízos. Sendo assim, a solidariedade é o maior sentimento de justiça. Reparar todo e qualquer dano seria o ideal para qualquer solidariedade humana.
Indenizar o dano produzido sem culpa é mais uma garantia que propriamente uma responsabilidade. E não se pense que os “reparados” pelo dano tirem vantagem disso, pois muitas vezes os danos são sempre maiores que a reparação. Imagine por exemplo, que um ente familiar querido venha a falecer por negligência ou imperícia médica, mesmo que se tenha uma indenização extremamente vultosa, não estabelece o estado a quo, sendo que valor nenhum no mundo supri a perda de um ente querido.
A responsabilidade civil do médico sempre provocou várias controvérsias, não apenas pela sua inclusão ora no campo contratual, ora no campo extracontratual; mas, principalmente, pela maneira mais circunstancial em que a profissão é exercida.
É óbvio que o médico, ao exercer suas atividades junto ao paciente, sua intenção é beneficiá-lo. Mesmo assim o dano pode surgir. Isso o obriga, pela teoria subjetiva da responsabilidade, a reparar o prejuízo, desde que, em caso de obrigações de meio, não tenha se utilizado dos meios necessários para a cura ou melhora do paciente; e na obrigação de resultado, não tenha atingido o resultado acordado e esperado
O direito moderno procura fugir do subjetivismo dos velhos conceitos filosóficos, procurando aproximar-se do fato por uma aspiração do ideal de igualdade. Chega de desigualdades políticas, étnicas, econômicas, sociais e até mesmo geográficas. É claro que essa solidariedade social da repartição dos danos não deve ser rigorosamente tida como uma igualdade matemática.
Insta consignar, em conclusão, que a visão dos tribunais, está cada vez mais se voltando a reparação do dano, pouco importando que o resultado seja demonstrado por uma falha instrumental ou da ciência, quando a culpa do médico não chegou a ser comprovada. Esta responsabilidade do médico está presa pelo aspecto contratual que faz da relação médico-paciente um contrato de locação de serviços. Os julgadores não estão muito preocupados em examinar profundamente as razões subjetivas da culpa, senão apenas em reparar o dano. Houve até quem sentenciasse: Não há nada de imoral, mesmo na ausência da culpa, em obrigar a reparação da coletividade pública causadora do dano por atos de seus agentes.
This article was translated by an automatic translation system, and was therefore not reviewed by people.