RESPONSABILIDADE CIVIL MÉDICA: BREVES CONSIDERAÇÕES EM FACE DA RECENTE JURISPRUDÊNCIA DO SUPERIOR TRIBUNAL DE JUSTIÇA

Abstract

The civil liability for medical malpractice is a frequently debated subject in the legal doctrine and legal decisions. One of the most controversial points is the conciliation of the medical obligation’s nature - usually defined as an obligation of ways, and not of results - with the objective liability that is founded in the Brazilian Consumers Code (CDC). In general terms, it is recognizable that hospitals, clinics or similar institutions are ruled by the CDC, but this same legal statute excepts the objective liability of the liberal professional, such as the doctors. The reason for that is due to the fact that the patient’s cure is a fact that cannot be demanded from the physician, since its occurrence depends on factors that are not directly or totally related to the medical service. This legal exception affects only the liberal professional, which means that, in a first look, it cannot be extended to the legal person that has as object the hospital-medical care. On the other hand, if the objective liability is enforced in all cases, considering that the hospital is, in fact, a supplier of services, the medical obligation would be transformed into a real result obligation, since the hospital would be responsible in almost all the cases in which the cure of the patient does not take place. The following text, taking as paradigm the recent decisions of the Brazilian Superior Court of Justice (STJ), tries to trace some parameters of conciliation of these rules, analyzing the decisions in parallel with the legal doctrine.