Civil liability as a result of medical error

Abstract

The objective of this article is to analyze the civil liability as a result of medical error, as well as to study possible improvements of this subject nowadays. First, an overview of the health system in Brazil is presented, followed by the need of assistance from the private sector in the provision of public health service. Subsequently, the topic of medical malpractice as a professional activity that has the potential to cause damage and its consequent need of compensation is examined. It is accepted the feasibility of medical error and the breach of duty of care. The Theory of the dialogue of sources is discussed in order to find the best legal combination that should be accounted for in the doctor’s liability, all in accordance with the governing principles of consumer/patient protection. The article also addresses the need of proving fault of the doctor and the exclusion of the strict liability applied in this case. Finally, a comparative study is carried out about the difficulties encountered by the victim/patient to prove fault of the doctor. The paper concludes that the medical activity should be analyzed from the point of view of subjective liability, not applying in this case the diverse modalities of the theory of risk (objective liability).