Medical Liability
CAUSAL LINK BETWEEN LACK OF
INFORMATION AND DAMAGE
 Is it possible to establish a causal link between lack of
information or defective clarification and damage caused
to the patient, and therefore obliging the doctor to a duty
of compensation?
 When dealing with medical liability, the answer to this
question has always been difficult for the doctrine, as
well as for the Courts to find.
 The reason for this difficulty is based on the fact that
medical actions take place in peculiar situations, and
therefore give rise to unpredictable consequences.
 Nevertheless, 4 different resolution methods can be
identified to answer this question.
 Common Law
 French Law
 German Law
 Portuguese Law
Common Law
 In relation to medical liability, there are two typified
crimes:
 Battery
 Negligence
Tort of battery
 Tort of battery consists on intentionally violating
someone’s physical integrity, without just cause.
 In medicine, this happens when no consent was
given before the intervention or when the doctor
overcomes the limits of consent.
Negligence
 An action based on negligence is adequate when the
patient gave his consent but due to inadequate
clarification, the consent was “poisoned”.
 In this case, the patient has to prove that the
information revealed was inferior to what was
required by law + show that he wouldn’t authorize
the treatment if he knew about the risks.
 In the USA, the causal link between damages and
lack of information is only established when proven
that the information would lead to refusing the
intervention.
 An analysis to Canadian jurisprudence shows that in
Canada, 56% of the cases, the patient wasn’t able to
overcome the causality test, despite the proof of the
doctor’s breach of duty.
French Law
 According to French and Belgian Law, it is possible
to claim a compensation from the loss of opportunity
in obtaining a better medical treatment. (Dano da
perda da chance)
 In this case, the patient has to prove that the
opportunity was strong enough, and due to the lack
of information, he lost the chance to chose an
alternative treatment which would have not caused
him damages.
 The Cour de Cassation (case Hedreul), admitted that
if it shown, with all the probability, that the noninformed patient would have authorized the
intervention, there will be no medical liability.
German Law (resembled to the Portuguese)
 According to the German Law, if the patient isn’t duly
informed, the consent is ineffective.
 This being, an arbitrary intervention is always an adequate
cause of damage.
 In case of insufficient information, the medical intervention is
illicit, and the doctor is responsible for the damages.
 Nevertheless, it is necessary to establish a causal link between
the omission of the duty to inform and the damage.
 This being, the Courts demand that there is an adequacy
between the medical intervention and the health damages.
 In this case, the cause of the damage is based on an omission
(of informing) and not an action.
 A figure called “hypothetic consent” appeared, constituting a
case of “licit alternative behavior”.
 When claiming “licit alternative behavior” the doctor
arguments that in case of violation of informed consent, even
if the patient knew all the information, he would have
consented on the intervention anyhow.
 German jurisprudence accepts this figure as a way of
rejecting abusive actions when the patient argues with
lack of information, or incomplete information.
 The BGH (Supreme Federal Court), allows the
“hypothetic consent” figure.
 The patient has not only to allege that if he had been
informed he would have refused the intervention, but he
has also to show that he would have been facing a conflict
decision, having difficulty do choose between
interventions.
 Upon the doctor impends the burden of proof that the
patient would have consented on the intervention, even
though the doctor had acted legally.
 The “hypothetic consent” shall be analyzed according to
the “specific patient” and not according to the
“reasonable patient”, meaning that the personal decision
is taken in consideration.
 Part of the doctrine is against this figure, believing it is a
way of taking responsibility away from the doctors.
Hypothetical consent – Portuguese law
 The modern Portuguese doctrine accepts that the doctor can
defend himself claiming the exception of licit alternative
behavior.
 Nevertheless, this mechanism can only work in these cases:
 1 - It can never be admitted when in case of serious breach of
the doctor’s conduct duties:
-
doctor’s degree of guilt
violation of essential procedural requirements
when there is no consent at all
omission of fundamental information
 2 – In case of light breaches of the duty to provide
information, this defense mechanism shall be admitted
 3 – The burden of proof shall be claimed by the doctor
(aquele que se pretende fazer valer de um facto
impeditivo do direito). In this case there is an inversion
of the burden of proof.
 4 – In case of doubt whether if the patient would accept
the medical intervention, the Portuguese judge can
lessen the doctor’s liability, considering the degree of
guilt.
Conclusion
 All European countries protect the patient’s
autonomy and right to informed consent.
 In the majority of European countries, the burden of
proof of revealing the information is up to the doctor.
 In case of arbitrary interventions, the doctor is, in
principle, liable, having to pay a compensation for all
damages, including pecuniary and non-pecuniary.
Conclusion
 Anyhow, in case of non-fundamental information
breach, many legal systems reduce or even eliminate
the patient’s compensation.
Mock Case
 A patient swallowed a nail, and therefore had to be
submitted to an intervention. On the following days, the
patient remained on the hospital, and was surprised by
the amount of laxatives that were being administrated.
 Eventually the nail was excreted by natural ways. The
patient concluded that he had been submitted to an
unnecessary intervention, and sued both the doctor and
the hospital.
 It was concluded that the surgery was absolutely
necessary due to bowel perforation, however the doctor
was condemned for not informing the patient of that
circumstance, and for not informing that the nail wasn’t
removed during the surgery.
 The patient argued that he wasn’t duly informed and
the rapporteur (relator do acórdão) concluded that in
the doctor-patient relationship, the duty of
information has to be considered. This right derives
from the principle of human dignity and private
autonomy.
 Although the doctor acted technically correct (on the
medical point of view), his conduct concerning the
duty to inform was illicit.
Faculdade de Direito da Universidade Nova de Direito
Direito da Saúde e Bioética
Matilde Álvares Ribeiro
003459