A medical error is inappropriate conduct by a healthcare professional that causes harm to the patient. It can be due to lack of skill (incompetence), recklessness, negligence, or failure in communication.
Specialist Lawyer in Medical Error
Although Medicine is a well-established science, Medical Law is a relatively recent topic, involving the judicialization of issues related to Medicine, encompassing various classes. Among them is Medical Law, which relates to compensation for medical and hospital errors.
Civil responsibility of doctors is still widely debated, considering the nature of the issue, which involves health, as well as personal and delicate matters for those involved. Moreover, it is a multidisciplinary topic, often involving consumer rights and other specialties. Therefore, it is necessary to have the assistance of a specialist lawyer in medical error who is competent.
What Does a Specialist Lawyer in Medical Error Do?
Specialist lawyers in medical error are essential for defending doctors in cases of medical negligence.
These professionals protect the reputation and rights of doctors during the legal process, carefully analyzing cases, defending doctors' rights, and providing competent legal representation.
A specialist lawyer in medical error with extensive experience in such lawsuits can advise the patient, providing information about the process and the best ways to achieve a favorable outcome.
What is the Difference Between Medical Error and Hospital Error?
Before pointing out the practical differences between medical error and hospital error, it is necessary to define each from the perspective of Medical Law, to understand the hospital's liability for damage caused to the patient by failure in medical or nursing services linked to the hospital's legal entity, and the doctor's personal actions.
Thus, according to the Eminent Genival Veloso de França:
“Medical error, almost always due to fault, is a form of inadequate professional conduct that implies a technical non-compliance, capable of causing damage to the patient's life or health. It is the damage suffered by the patient that can be characterized as incompetence, negligence, or recklessness of the doctor in the exercise of their professional activities. The conditions of care, the necessity of action, and the means employed are taken into account.”
In Medical Law, according to Genival Veloso de França, 12th ed., revised and expanded Rio de Janeiro: Forense, 2014, p. 258/259.
The term “medical error” is commonly associated with the doctor's personal act, while “hospital error” is linked to failure in the hospital service itself, that is, those related to the patient's stay (hospitalization), facilities, equipment, auxiliary services (nursing, exams, radiology). For example, the nursing service that administers the wrong medication to a patient, leading to death by anaphylactic shock.
The hospital's liability regarding the technical-professional performance of the doctors who work there or are contracted by agreement is subjective, meaning it depends on proving the doctor's fault.
In cases of paramedical and extramural services, since it is objective responsibility, only the failure or defect in providing the hospital service needs to be demonstrated, along with causation and damage, according to Article 14, head, of the Consumer Protection Code (Law No. 8.078/1990).
Art. 14. The service provider is liable, regardless of fault, for the compensation of damages caused to consumers by defects in the provision of services, as well as by insufficient or inadequate information about their use and risks.
Regarding medical error, and not hospital error, fault can be applied due to the subjectivity involved in the case. In these situations, the hospital may not be held liable if there is no causal link with its provision, just as the doctor may be considered not at fault, considering the factual circumstances.
§ 4° The personal responsibility of liberal professionals shall be determined by the verification of fault.
It is concluded that, in the case of medical error, without proving the doctor's fault, the hospital is not held liable, as the focus is on the doctor's own work, applying paragraph 4 of Article 14 of the Consumer Code. In cases of proven fault, the support of a specialist lawyer in medical error is necessary to assess the case's particularities.
Does Every Medical Act Constitute a Medical Error?
Not every adverse outcome can be labeled as a medical error, says Professor Genival Veloso de França (Medical Law, 11th ed., 2013). Therefore, not every medical or hospital act constitutes medical or hospital error, respectively, but only those performed in non-compliance with the law and rights, with offensive potential, that is, capable of causing harmful damage to the patient's life or health.
In this line of reasoning, the right to compensation for the victim(s) of medical error arises, provided that the illicit act, failure in hospital service provision, or doctor's fault, causation, and harmful damage (CC/02, Articles 186 and 927) are demonstrated.
Art. 186. Whoever, by voluntary action or omission, negligence, or recklessness, violates a right and causes damage to another, even if exclusively moral, commits an illicit act.
Art. 927. Whoever, by an illicit act (arts. 186 and 187), causes damage to another, is obliged to compensate for it.
Articles 186 c/c 927, Civil Code, 2002
On the subject, Fabrício Zamprogna Matiello (4th edition, 2014) adds:
“Regarding the civil responsibility of doctors, the general rule of the necessity to demonstrate the agent's fault is followed, easing the requirements for the irrefutable and profound proof of its occurrence as stated in the legislation, when the nature of the demand or the concrete circumstances point to responsibility through the production of more straightforward conviction elements. (...) In principle, the hiring does not include any obligation to cure the patient or to improve the quality of life enjoyed, because the professional is responsible for employing all possible care for the ultimate and above all moral purpose of the entire treatment, that is, to achieve a cure. However, the mere failure to achieve the initial goal of curing does not induce the existence of legal responsibility, which does not dispense with verifying the doctor's fault indicated as the cause of the harmful result.”
Thus, the mother or her child, for example, victims of medical error during childbirth, must prove that the doctor or hospital did not act in accordance with obstetrics and gynecology protocols and guidelines, causing harmful damages due to negligence, recklessness, or incompetence, to be entitled to just compensation for damages.
