14/04/2021 Jurisprudence

Leges Artis

The Highlight of Jurisprudence of April discloses the Supreme Court of Justice's Judgment of 15 December 2020 on medical liability.

This Judgment examines the responsibility of a doctor for damages caused by a surgical procedure for the extraction of a polyp. The patient understood that she was not informed about the adequate preparation for the procedure, which would be the cause of the incident that occurred during the procedure.

The Court of First Instance did not rule in favour of the patient, but the Court of Appeal ordered the doctor to pay compensation. In view of this decision, the doctor appealed to the Supreme Court of Justice, which concluded that the payment conditions were not met.

In the opinion of the Supreme Court of Justice, the physician has complied with the existing leges artis, that is, the set of scientific rules, techniques and professional principles that the physician must know and use, taking into account the state of science and the concrete condition of the patient.

The Supreme Court of Justice understood that the doctor was not required to adopt procedures intended to “avoid scenarios that arise in the domain of abnormality (absolute or relative) and/or manifest unpredictability”.

As the violation of the duty of care is thus not proven, the doctor's conduct did not result in an unlawful act.

It is also worth highlighting the STJ's understanding regarding consent. It was understood that the information provided for a free and informed consent does not imply that the patient is transmitted “the set of risks or adverse effects that are not typical - known and predictable -, serious and - yet - unless they are serious and serious, with a high degree of improbability of occurrence ”.

One last note for the investigation of medical error. In light of the decision now known, there will be no error in treatment if the methodology followed is accepted as valid and adequate, in the light of the standards in force at the date of the procedure, and there are no alternatives that can prevent possible adverse effects. For this reason, the failure of the medical act and the resulting damages were only due to “uncontrollable circumstances and indifferent to the application of the appropriate technique and its previous preparation”.

The full text of the STJ's decision is available here.


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