Obrigações de meios e resultados

• Autor(a) principal: Lopes, Francisca Faria
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/85178
• topic: Responsabilidade médica; Leges artis; Obrigação de meios; Obrigação de resultado; Obrigação médica; Presunção de culpa; Direito

The present paper addresses on one hand the dichotomy of obligations of means and obligation of results, analysing several distinctive criteria, and on the other hand the possible classification of medical obligation. For most cases, medical obligation is an obligation of means, however in some specific cases it can be classified as a result. In fact, in cases of analysis, exams, plastic surgery and other medical procedures, the medical obligation can be an obligation of result due to either, the reduced risk or margin of error of the therapeutic procedure. It is thus necessary to do a comprehensive analysis of the situation to ensure an adequate classification regarding the dichotomy, taking in consideration all the circumstances and the convention of the parties. In the scope of contractual liability, the legislator has established a presumption of guilt against the debtor, being up to the creditor to prove any wrongfulness. In this academic paper we investigate the applicability of the presumption on medical liability. The doctor generally undertakes an obligation of means and therefore is obliged to carry out a diligent activity with respect of the leges artis according to the concrete circumstances. Therefore, by analysing the unlawfulness (namely the leges artis violation) we are simultaneously evaluating the assumption of guilt (a negligent conduct). Once unlawfulness has been proven, the physician is presumed guilty and it is upon them to rebut the presumption (to prove a diligent conduct). The doctor is in a better legal position than the patient due to his/her knowledge and easy access to information and documentation. The dichotomy is thus relevant in order to verify the fulfilment of the obligation. Nonetheless it cannot dismiss the legal presumption.