O reconhecimento da responsabilidade civil médica na violação ao consentimento informado

Abstract

Informed consent is an essential element of the doctor-patient relationship and represents the most important tool for protecting the autonomy and self-determination of individuals in decisions related to their own health. The consolidation of this concept is associated with the gradual overcoming of the paternalistic medical model, in which the professional held a predominant position in therapeutic decision-making, with the patient playing an essentially passive role in relation to the proposed interventions. With the strengthening of personal rights and human dignity, it has come to be recognized that the legitimacy of medical intervention depends on the provision of clear and adequate information about the diagnosis, foreseeable risks, therapeutic alternatives, and possible consequences of treatment. In this context, the absence or insufficiency of information has generated relevant debates in the field of medical civil liability, especially regarding the possibility of holding the professional liable regardless of the occurrence of technical error in the performance of the procedure. Given this scenario, the present study aims to analyze informed consent and examine the extent to which a violation of the duty to inform may give rise to the civil liability of the physician. To this end, the hypothetical-deductive method was adopted, through bibliographic research and jurisprudential analysis of decisions of the Superior Court of Justice regarding civil liability. Throughout the research, the concept and requirements of free and informed consent, the structure of medical civil liability in the Brazilian legal system, and the criteria adopted by case law to recognize or dismiss the duty to compensate are analyzed. Finally, after analyzing the theories and their practical applications, the answer to the research question will be obtained.