O dano decorrente de erro médico e iatrogenia: uma abordagem sob o enfoque da responsabilidade civil

Abstract

This work sought to differentiate the damage resulting from medical error from iatrogenic damage, both confused by doctrine and jurisprudence, under the focus of the consequences that each entails in the area of civil liability. Differentiate the two institutes brings very important consequences for the civil liability, because the medical error generates accountability, while iatrogeny don’t. The issue, although of great practical importance, is little discussed by the doctrine and juridical community. Aspects dealing with this topic were analyzed, such as the subjective liability of the physician and the implications of using the Consumer Protection Code on the physician-patient relationship. For the elaboration of the research was used the analytical and also the empirical method, taking into account that the analysis of actual cases provided information gathering that contributed to the production of findings about the theme. The work was based on scientific articles, laws, legal and medical books, medical research and jurisprudence. It was concluded that medical error depends on guilt in the strict sense and that proving this guilt is very difficult due to several particular factors, which hinders justice. The iatrogenic damage, despite some opposing positions, was seen as predictable, unexpected or not, caused by medical practice. Faced with the complete absence of guilt when the iatrogenic damage is set, civil liability is completely removed. The physician-patient relationship is contractual, of the sui generis type. It was found that the obligation of doctors is of medium and not of result, except in cases of aesthetic surgeries, in which, according to the STJ, the obligation is of result. Several jurisprudences were analyzed and also two real cases occurred in the city of Juiz de Fora, involving medical error, iatrogeny and civil liability. From this analysis it became evident that processes involving medical error are loaded with emotional charge, since the human life is offended. The difficulties that beset the evidence of guilt in the medical field are enormous, given the corporatism, the reluctance of witnesses and the seriousness of the matter and its implications, if the guilt of the professional remains proven.