Murillo Gutier | murillo@gutier.adv.br
Abstract
This article examines the medical civil liability in the Brazilian legal system, from its historical origins in the Code of Hammurabi and Hippocratic tradition to the contemporary normative framework established by the Civil Code of 2002 and the Consumer Protection Code (CDC). The study analyzes the legal nature of the physician-patient relationship, characterized as a contractual bond of a “sui generis” nature, and distinguishes between the obligation of means — the general rule — and the obligation of result, applicable as an exception to plastic surgery according to the STJ.
The work systematizes the modalities of professional fault — negligence, imprudence, and lack of skill (imperícia) — as well as the concept and classification of medical error, distinguishing between excusable and inexcusable errors. It further addresses the error of diagnosis, which, as a rule, only gives rise to liability when it is gross. The remaining elements of liability — harm (material, moral, and aesthetic) and causal link — are also examined in light of scholarship and case law.
The article also explores the physician’s civil liability for harm caused by the prescription of medications, including “off-label” and experimental use, therapeutic freedom, prescription for allergic patients, and drug interactions. Finally, the study examines the hospital’s civil liability for medical errors, consolidating the STJ’s position that hospital liability for paramedical services is objective (strict), whereas liability for medical services depends on proof of the professional’s fault.
Keywords: Medical civil liability. Obligation of means. Obligation of result. Negligence. Imprudence. Lack of professional skill. Medical error. Iatrogenesis. Causal link. Burden of proof. Plastic surgery. Prescription of medications. Hospital liability. Consumer Protection Code.
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Considerations on Medical Civil Liability in Brazil - Murillo Gutier (5 downloads )