Responsabilidade civil do médico e a teoria da perda da chance no TJRS

Abstract

This study aimed to present some important aspects about the loss of chance theory and the medical-hospital liability, as well as to verify the Court of Justice of Rio Grande do Sul (TJRS) understanding of the issue. For that, the medical-hospital liability appeals judged by the TJRS were analyzed on the basis of the loss of chance theory. The jurisprudential research returned 63 judged appeals between 1990 and October 2013. Such appeals provided data for the creation of the graphs presented in chapter 4, which refer to the application of the loss of chance theory in medicalhospital liability in the TJRS. Among the results of this jurisprudential research, it was verified that there was a significant increment in the number of appeals about the matter from 2007, the majority of them being civil ones. Further, it was found that hospitals appeared as defendants in most of the actions, which were mainly proposed as a result of the patient‟s death, disability or limb, sense or function loss. With regard to the success in the demands after judgment of the appeals, it was observed that the decisions were mostly in the plaintiffs‟ favor. It can be concluded that, although the adoption of the loss of chance theory by the Brazilian Judicial Power is recent, it has brought new outcomes to the notions of civil liability, also reflecting in the medical-hospital liability. That is because acceptance of the partial causality has condemned physicians, clinics and hospitals to compensate the victims, even though it is not possible to be absolutely certain whether the action or omission was decisive for the damage to occur, or, that the damage would not have occurred if the defendant‟s conduct had been different. In this context, the lost chance rather than the damage itself is compensated for through the loss of chance theory, using the principles of proportionality and reasonability.