The Sao Paulo Court acquits more than condemn professionals accused of malpractice. A survey conducted at the Court found that in the first half of this year the number of appeals against doctors were dismissed reached 65%, remaining sentences of the first degree, while the percentage of conviction was the order of 35%.
"The cases of medical errors s emblematic and not always transparent to the truth emerges clarification of the judges," said Judge Ernie Zuliani, of the Court of St. Paul, an expert on the subject. According Zuliani, in the case of medical malpractice, the duty to prove it is the part that points to the supposed guilt of the professional.
Error would be the fault of the physician in the practice, either because they did what I should do because he did the wrong thing, or because he wrongly or mistakenly that it was his duty.
The latest study on the subject was published in 2007 by the Regional Council of Medicine of São Paulo (Cremesp). The survey collected data from seven years between 2000 and 2006 and showed a 75% increase in the number of complaints against physicians.
Also according to the study of Cremesp, medical error accounted for 35% of all complaints received and 43% of cases against professionals from São Paulo. The local authority company promises to the beginning of August to update this study.
An estimate by the National Association of Private Hospitals and quoted by the lawyer Philip Lisbon Capella realizes that one in ten physicians in Brazil respond or have responded to malpractice lawsuits.
Damage to the beauty
In the survey conducted in São Paulo Court of Appeals surveyed the number reached 40. Of all kinds of medical procedures led to litigation, most cases involve alleged errors in aesthetic surgery, obstetric and bariatric. Patients claim compensation for moral damages, materials and aesthetic.
This was the case of a patient who underwent plastic surgery to change in a breast implant clinic in Sao Paulo. Occurred the so-called asymmetry (the patient's right breast was higher than the left). The 3rd Chamber of Private Law understood that there were guilty of medical malpractice in the sport.
The foundation is the conviction that this type of surgery there is a contractual obligation to respect the result. "The bottom cover plate due to the obligation assumed, in the open, has not been achieved," said the rapporteur of the appeal, Judge Donegá Morandini.
For the judge, when the expected does not happen by the patient contracted the doctor has a duty to indemnify it, on account of frustration embittered by the lack of success in surgery.
In this case, the doctor was ordered by the judge of first instance to pay moral damages amounting to 25 minimum wages (about $ 12,500). The gang headed by judging the amount found Morandini narrow, doubled its value.
Burden of proof
The Sao Paulo Court judges the cases of malpractice liability by applying the Consumer Defense Code (CDC). The consumption ratio in the provision of professional services is interpreted as being subjective, or depends on proof of fault of the doctor.
The judge Beretta da Silveira, president of the 3rd Board of Private Law of the Court of São Paulo, explains that any event that brings legal repercussions can be proved in several ways: confession, submission of documents, witness statements and expert opinions.
He points out that the rule is that any fact stated in court shall be proved by those who claim (the so-called burden of proof). That is, the duty to prove the existence of damage in which the plaintiff relies competes with it, which can be direct or indirect victim of the damage.
A woman in the city of Franca sued the doctor accused of being responsible for the entry in your binder / prenatal medical records that would be HIV +. She also blamed the doctor, with the notation, cause the breakup of his marriage, and because of the concussion suffered by the separation, so the abortion of the fetus.
The Court recognized that there was a wrong note in the chart, but it was momentary. The blood test came back positive for syphilis and negative for AIDS. The doctor changed the information recorded on the card service, but soon rectified the error.
For the Court, the patient has exaggerated the charges and failed to prove that the attitude of the doctor caused all the problems pointed out by it. "You can not give the defendant the responsibility of destroying the marriage of the author or with abortion," explained Sebastian Judge Carlos Garcia, of the 6th Chamber of Private Law.
Doctor or hospital
Another issue that is at peace at TJ Paulo is the understanding that the professional has no liability when the damage occurs by failure of the hospital.
This understanding can be illustrated by the conviction of one of the most renowned aesthetic clinics in the country. The company was obliged to indemnify a patient who has scheduled a plastic surgery to correct the abdomen and liposuction. In the same decision, the Court exempted the medical liability.
The client account that arrived on the scene early in the morning, with eight hours of absolute fasting, but only received medical visit at 19h, after almost 20 hours without eating. When was anesthetized vomited, had aspired to the secretion and respiratory arrest. He was rushed to the ICU of another hospital, where he was admitted.
The victim filed a lawsuit against the doctor who attended the clinic and against. The Court held that there was "inexcusable failure" of the clinic, which caused the suffering patient, but found no error in the conduct of the doctor.
For the class that dismissed the action, one would expect a clinic willing renowned not only adequate means to prevent incidents like what happened, but to give proper treatment to the victim of such an occurrence.
"After all, anyone who built a clinic in default, although aware that any surgery involves a risk, will imagine that the whole structure of equipment and services necessary to avoid the risk, mitigate the consequences and deal with them until the hazard is completely removed, "said Judge Ricardo Pessoa de Mello Belli, rapporteur of the resource.
In another case, the 4th Chamber of Private Law absolved of responsibility Araraquara a doctor, accused of alleged error in surgery to remove a cyst in a woman. The patient accused the doctor to remove the tumor of the knee have cut the sciatic nerve which caused her so-called "foot drop".
In the first instance decision, the judge took into account the expert report. The patient appealed accusing the expert corporatism does not recognize the failure of the orthopedist.
The Court acknowledged that the report was correct and accepted the doctor's version of what occurred, in fact, was an iatrogenic. That is, the nerve that causes the effect of "foot drop" lost its inertia, the result of inflammation unmatched by surgery.
The chamber decided to acquit the doctor for absolute lack of proof that the surgery acted with recklessness, negligence or malpractice. "The doctor in this case was not required to cure the patient or avoid the harmful effects of nerve involvement by compression of the cystic tumor," argued the rapporteur, Ernie Zuliani.