A responsabilidade criminal do médico pela realização de intervenções e tratamentos médico-cirúrgicos arbitrários

Activity: Supervision


This thesis has as its object the question of the physician's criminal responsibility, arising from the non-fulfillment of the duty to clarify the patient, in order to make the consent for the practice of medical-surgical interventions or treatments effective. Knowing that the breach of the duty to clarify the patient can be verified either in willful or negligent performance, although in this case only when the negligence is gross, it is intended to demonstrate that the doctor's error on typical factuality - ignorance that the patient is not properly informed - excluding deception, allows the negligent type to be filled, provided that there is a causal relationship between the action and the result, result (the nonclarification) that may result from the failure to provide the necessary clarifications and, or, the failure to verify that the patient is not properly informed. Gross negligence, according to the "double-step" doctrine, requires, at the level of the type of wrongdoing, that we are facing a particularly dangerous action and a highly probable verification result, at the level of the type of guilt, of being configured that the agent, not omitting the conduct, revealed a particularly objectionable attitude of levity, or carelessness, before the criminal legal command. It was tried to prove that, even providing the necessary clarifications for the clarification of a normal patient, being knowable and predictable that the concrete patient is not properly clarified, the doctor who omits the verification of the due clarification of that patient, practices a negligent action, particularly intense, both in terms of the type of wrongdoing and the type of fault, and should be considered as being done with gross negligence. We argue that, in the field of criminal law, which includes the assessment of the conduct provided for in said legal type, the procedural principle of the presumption of innocence is in effect, which implies that the burden of proof does not fall on the doctor. We are faced with the difficulty resulting from the absence of judicial decisions regarding the type of crime provided for in article 156 of the CP.
Period27 Oct 2020
Degree of RecognitionPhD