Teoria da perda de uma chance e o erro médico: Análise da aplicabilidade jurídica desta modalidade de responsabilização civil

Abstract

This monographic paper, produced based on the technique of indirect documentary research - characterized by the realization of theoretical and bibliographical researches - is dedicated to the defense of the application of the loss of a chance theory in the face of medical error as a form of civil responsibility. For this, the first chapter will be introduced by the study of the general theory of civil responsability, in the second will be expatiated the civil responsability of doctors and hospital institutions according to the Civil Code, the Consumers Protection Code and the Medical Ethics Code, as well as some judgments will be presented to prove the reality existing in the Brazilian jurisprudence in which the patient victim commonly does not receive compensation. Given this situation, the third chapter is introduced in which the general aspects of the theory of loss of chance will be analyzed, focusing also on the legal nature of the missed chance and, finally, advocating its application in the medical field as a tool to prevent the injustice of the patient remaining without any restitution even if the medical error is proven. Furthermore, it is noteworthy that the proposal dealt with in the last chapter is of recent use in the Brazilian territory and, therefore, there is still some resistance to apply it, which will be strongly opposed in this work, which will aim to assist in the implementation of its jurisprudential application.