O conceito jurídico de “erro médico” em oposição aos riscos inerentes à medicina : análise doutrinária e jurisprudencial das limitações humanas e técnicas como forma de afastar a responsabilidade civil médica

Abstract

In light of the undeniable increase in the judicialization of healthcare on account of medical errors, this paper's main objective is to legally define "medical error" in order to differentiate it from the inherent risks of Medicine, involving humans and technical limitations relative to this science, and to verify the applicability of such concepts, as a way of avoiding the professional´s civil accountability, in case law. To achieve this, a basic research with bibliographical analysis was conducted, accompanied by the most relevants legal provisions, regarding the legal nature of medical civil liability and the elements that compose it — culpable conduct, damage, and causal connection — along with the exclusions of liability, as well as were also collected decisions from the national courts. The application of the Consumer Protection Code and the conceptualization of imprudence, negligence, and incompetence, as elements of medical fault necessary to characterize the error, were also part of the discussion, together with the proposal of structural and individual factors related to medical conduct in order to mitigate the judicialization. The conclusion points to the doctrinal pertinence of the inherent risks of procedures as an exclusion of medical responsibility and to the recurrent use of this concept in brazilian courts.