Standards probatórios no âmbito da responsabilidade civil do médico: uma análise exploratória do grau de suficiência da prova na narrativa jurisprudencial do TJMG e TJRS nos anos de 2013 a 2017

Abstract

The present study has as its theme the possibility of logical-rational control of the phatic judgment through the incidence of the standard of proof theory, which is problematized in the context of medical civil responsibility. It aims are to reflect on which standard of proof should be involved in actions of medical civil responsibility, as well as to observe if there is a degree of sufficiency of proof being required by the TJMG and TJRS to accept as rationally proven the fault in this type of demand. It was carried out not only through a bibliographic examination of national and foreign doctrine, but also through a qualitative empirical research of civil decisions of the Courts of Justice of the State of Minas Gerais and of the State of Rio Grande do Sul that deal with the proof of fault and other elements that give rise to medical civil responsibility, so that it would be possible to understand, through the analysis of the degree of proof of these jurisprudential narratives, how the judges are assessing the sufficiency of the probative set to prove the factual hypothesis, in view of the available evidence. It adopts as theoretical reference the principle of rational persuasion, a concept built gradually by the doctrine over the years and interpreted, according to the current conception of rationality that underlies it, as relative freedom of evaluation of the tests, carried out within rational-rational parameters between which include the standards of proof. This research is of great social and academic value, since it brings an innovative perspective to the field of proof and judicial conviction, providing undeniable jurisprudential and doctrinal development in our country, which makes us closer to reaching fairer decisions. It concludes, from the perspective of the previously established theoretical framework, that the theoretical research and the critical view on the result of the empirical research made possible the confirmation of the hypothesis that the standard of proof to be applied to the factual judgment in medical civil responsibility is the clear and convincing one, as a criterion of judgment, which will not only indicate the degree of proof to be necessarily satisfied to prove the doctor's fault, but also will provide better control of the judicial motivation on the facts, thus giving greater legitimacy and rationality to judicial decisions.