Convenções processuais probatórias atípicas previstas em contratos de prestação de serviços médicos: uma análise dos poderes instrutórios do juiz

Abstract

The present work aims to analyze the possibility of incidence of clauses that represent atypical procedural conventions in previous legal transactions between doctor and patient, related to evidential limitations, and the scope of the intervention of the judge before this contract. The hypothesis brought up in the study is that, in existing in the legal business, a previous atypical procedural convention that limits the evidentiary production, in view of the patient's vulnerability, and their lack of sufficiency regarding medical and legal contents, as well as due to the fact of finding if unattended by a lawyer, he will not be able to see the procedural effects of the aforementioned convention, and may incur a pre-fixing of the result, in addition to agreeing on the investigative powers of the magistrate, which is not their responsibility. Thus, with proof of such a situation, the work proposes that the magistrate should act actively on the referred clause, analyzing it critically and, if necessary, deeming it invalid. In this way, through the control of the atypical procedural convention by the judge, the purpose of the sole paragraph of article 190 of the CPC will be privileged as a rule, as it is not seen in the case the essential link of an atypical procedural convention, that is, the consensus of the parties, in addition to respecting the constitutional model of process, because the parties have agreed on issues related to the powers and prerogatives of the judge. To this end, relevant institutes for the construction of this understanding were presented and studied, such as the fundamental right to proof, procedural negotiation capacity, the concepts of vulnerability and hypo-sufficiency dealt with in the consumer protection code, the institute of the magistrate's proof initiative, the role of the judge in the control of procedural conventions related to evidence, in addition to the influx of standards of evidence, in order to correctly analyze complex claims involving medical error. As a result, the methodology used was eminently deductive and critical, as we sought to draw a correlation of various doctrinal contents through a syllogistic argument, as well as during and after the bibliographic analysis, we sought to bring a practical perspective of these studies to the doctor-patient relationships within the forensic practice.