A aplicabilidade da teoria da perda de uma chance na responsabilidade civil médica

Abstract

The term liability is used in the legal environment in any case in which an individual or legal entity must assume the consequences of a harmful act, fact or business. Thus, every activity, whether by action or omission of the agent that causes harm to others, brings with it, as a social fact, the problem of responsibility. In this way, the social interest in restoring the moral and patrimonial balance caused by a harmful activity arises, since an unrepaired damage is a reason for social unrest. In order to reduce the number of damages without compensation, legal systems have increasingly sought to improve the duty to indemnify, starting to accept in the mid-nineteenth century, with the emergence of the Welfare State, the existence of probability and, consequently, the human sciences should not disregard them. As a consequence, a new category of indemnifiable damage is born, the loss of a chance. The present work presents a study on civil liability, modalities, applicability, interpretations of doctrine and jurisprudence. It presents the institute of the theory of the loss of a chance, a doctrinal creation accepted in the national legal system, and the identification within the civil liability in the medical area. It is still necessary to identify the medical error and the legal circumstances that authorize indemnities to analyze the application. Although it is still not possible to define a safe parameter about the institute of the loss of a chance, specifically in the medical area, for now there is no legislation regulating the subject. To carry out the work, an inductive method was used with bibliographical, documental and legislative research.