Civil Liability For Medical Malpractice: Considerations About Recent Decisions Of The Brazilian Superior Court Of Justice

Abstract

The civil liability for medical malpracticeis a frequently debated subject in the legal doctrine andlegal decisions. One of the most controversial points isthe conciliation of the medical obligation’s nature - usuallydefined as an obligation of ways, and not of results- with the objective liability that is founded in the BrazilianConsumers Code (CDC). In general terms, it isrecognizable that hospitals, clinics or similar institutionsare ruled by the CDC, but this same legal statute exceptsthe objective liability of the liberal professional, such asthe doctors. The reason for that is due to the fact that thepatient’s cure is a fact that cannot be demanded from thephysician, since its occurrence depends on factors that arenot directly or totally related to the medical service. Thislegal exception affects only the liberal professional, whichmeans that, in a first look, it cannot be extended to thelegal person that has as object the hospital-medical care.On the other hand, if the objective liability is enforced inall cases, considering that the hospital is, in fact, a supplierof services, the medical obligation would be transformedinto a real result obligation, since the hospital would beresponsible in almost all the cases in which the cure of thepatient does not take place. The following text, taking asparadigm the recent decisions of the Brazilian SuperiorCourt of Justice (STJ), tries to trace some parameters ofconciliation of these rules, analyzing the decisions in parallelwith the legal doctrine.