A plastic surgeon in Brazil is facing his 48th medical malpractice claim from a patient who suffered blindness following an abdominoplasty and liposculpture procedure. Following her surgery, the patient began losing her vision and attempted to contact the surgeon but he allegdly was slow to respond or failed to respond. As a result, the patient alleges that she suffered ischemic optic neuropathy that resulted in complete loss of vision in her left eye and partial loss of vision in her right eye, which are permanent conditions.
The patient’s medical malpractice lawyer in Brazil stated, “Absolutely regrettable that a doctor in a post-operative period does not give due attention to a patient who reports that she is going blind in the way she reported. With the desperation she reported. It is absolutely regrettable. This conduct can indeed represent omission help.”
The plastic surgeon also issued a statement: “I will prove that I acted exactly within the normal parameters, which the Brazilian Society of Plastic Surgery and the Federal Council of Medicine appreciate. . So much so that the parameters were normal during discharge.”
The plastic surgeon reportedly is responding in court to 47 medical malpractice lawsuits in five states in Brazil (São Paulo, Rio de Janeiro, Espírito Santo, Minas Gerais, and Bahia).
Medical Malpractice Claims In Brazil
According to a recent law review article, the medical profession in Brazil is governed by Resolution No. 2217/2018 of the Federal Council of Medicine (“Resolution”), which approved the Medical Code of Ethics.
Article 1 of the Resolution establishes that the doctor is prohibited from “causing harm to the patient, by action or omission considered as malpractice, recklessness or negligence.” Article 1 adds that “medical liability is always personal and cannot be presumed,” which means that the medical professional’s subjective responsibility derived from the obligation of means.
Article 22 also states that the physician must obtain consent from the patient or the patient’s legal representative after explaining and clarifying the procedure to be performed, except in cases of imminent risk of death. Even if the consent is obtained, the doctor shall assume responsibility for the professional act, in accordance with Article 4. In this sense, the Superior Court of Justice has ruled that fault liability applies in cases of breach of the duty of information as it compromises the consent of the patient, and that the Consumer Defence Code applies, which means that the judge may decide that the burden of proof lies with the doctor and not the patient. However, certain activities may constitute an obligation of result, such as “plastic surgery and technical procedures of laboratory examination and others, such as radiographs, tomographies, magnetic resonances.” The position of the Superior Court of Justice is that cosmetic surgery is an obligation of result, while restorative surgery is an obligation of means.
With regard to the liability of hospitals, the Superior Court of Justice has decided that the fault regime applies. Therefore, it will depend on the evidence of the physician’s fault. The strict regime will only apply if the services provided by the hospital are defective, such as those related to the hospitalization and feeding of the patient, facilities, equipment and auxiliary services, nursing and medical exams. The responsibility for anaesthesia is an obligation of means. The Superior Court of Justice ruled that it only falls “to the joint liability of the head of the medical team when the person who caused the damage is part of the team in a subordinate position. Thus, in the case of an anaesthesiologist, who is part of the team but acts as an autonomous professional, following techniques specific to his or her medical speciality, he or she must be individually held responsible for the event.”
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