Legal analysis of the determination of the theory of loss of a chance in the medical field

• Autor(a) principal: Zimiani, Lais Silva
• Data de Publicação: 2022
• Outros Autores: Araújo, Fabio Caldas de, Cardoso, Kelly
• Tipo de documento: Artigo
• Idioma: por
• Título da fonte: Research, Society and Development
• Texto Completo: https://rsdjournal.org/index.php/rsd/article/view/32198
• topic: Probationary phase of the loss of a chance; Presumptive judicial reasoning; Requirements of the Superior Court of Justice; Medical civil liability.; Fase probatoria de la pérdida de una oportunidade; Razonamiento judicial presuntivo; Requerimientos de la Corte Superior de Justicia; Responsabilidad civil médica.; Fase probatória da perda de uma chance; Raciocínio judicial presuntivo; Requisitos do Superior Tribunal de Justiça; Responsabilidade civil médica.

The possibility of applying the theory of the loss of a chance of cure or survival has been a recurring theme in cases in which medical civil liability is discussed. Especially with regard to the evidentiary phase, the problematization is permeated in the presumptive judicial decisions, averse to the fulfillment of the substantial contradictory and procedural cooperation, culminating in the use of evidence with a non-coherent and adequate argumentative construction of medical guilt and the causal link between medical conduct and the harmful event. As a hypothesis of the stir, it is understood that the application of the requirements established by the Superior Court of Justice are an indispensable part of the theme decidendum. This study aims, in this line, to demonstrate the outstanding evidentiary procedural elements in the context of the verification of the theory of loss of a chance in the medical field, as well as to analyze to what extent the judge could use presumptive reasoning to conclude for the application of the theory in the medical field. Through a deductive analysis using national and international specialized doctrine on the subject, in addition to citing specific legislation, jurisprudence and principles of law, its application in the particular case is identified. Also, the logical and systematic methods will be used, with the demonstration of cases already decided by the national courts.