Liability of the physician in the practice of dysthanasia Cecília Lôbo Marreiro Resumo Hodiernamente, a responsabilidade civil médica se caracteriza pela conduta culposa do médico, do nexo de causalidade entre esta e o dano sofrido pela vítima. Tendo por fundamento o paternalismo médico desme- dido, muitos pacientes terminais sofrem as consequências da obstinação terapêutica, o que resulta em uma morte sofrida e desumana. Com base nesses pressupostos, procurou-se no presente artigo analisar a respon- sabilidade civil do médico na prática da distanásia. Para a consecução desse objetivo, além de ter sido reali- zada uma pesquisa bibliográfica de matérias pertinentes à temática, formulou-se um caso clínico hipotético com o fulcro de melhor nortear a discussão. Disto concluiu-se que há responsabilidade civil do médico pela prática da distanásia, vez que é por meio desta que se instauram danos ao paciente terminal, o que por si só lhe subtrai o direito a uma morte digna e humana Palavras-chave: Responsabilidade civil – médicos. Doente terminal. Morte. Resumen Responsabilidad del médico en la práctica de la distanasia Actualmente la responsabilidad civil médica se caracteriza por la conducta ilícita del médico, la relación de causalidad entre éste y el daño sufrido por la víctima. Tomando por base un paternalismo médico excesivo, muchos pacientes terminales sufren las consecuencias de la terquedad terapéutica, lo que implica una muer- te dolorosa e inhumana. Con base en estos supuestos, intentamos objetivar en este artículo, analizar la res- ponsabilidad del civil del médico en la práctica de la distanasia. Para lograr este objetivo, además de haberse realizado una búsqueda bibliográfica de material relacionado con el tema, se compuso un caso clínico hipoté- tico con el apoyo de mejor orientar a la discusión. Se concluyó que existe responsabilidad civil del médico por la práctica de la distanasia, ya que es a través de este que se establece el daño al paciente terminal, lo que por sí solo le resta el derecho a una muerte digna y humana Palabras-clave: Responsabilidad civil – médicos. Enfermo terminal. Muerte. Abstract Liability of the physician in the practice of dysthanasia Medical liability is nowadays characterized by the wrongful conduct of the physician, the causal link between this and the damage suffered by the victim. Having founded on the medical paternalism, many terminally ill patients suffer the consequences of medical futility, which entails in a painful and inhumane death. Based on these assumptions, the article aims to consider the liability of the physician in the practice of futility. To achie- ve this goal, and with a literature research of relevant material to the issue performed,, a hypothetical clinical case was elaborated to better guide the discussion. It was concluded that there is liability for the practice of medical futility, since it is through this that are established damage to the terminal patient, which alone will subtract the right to a dignified and human death. Keywords: Damage liability – physicians. Terminally ill. Death. Research article Research 1. Master [email protected] – Centro Universitário Estácio (FIC), Fortaleza/CE, Brazil. Mail Rua José Alves Cavalcante, 700, Casa 14-B Cidade dos Funcionários CEP 60822-570. Fortaleza/CE, Brazil. There is no conflict of interest. 304 Rev. bioét. (Impr.). 2013; 21 (2): 304-12 Liability of the physician in the practice of dysthanasia Humans, as beings that are vulnerable to ill- or malpractice, professional acts resulting in death, nesses, found themselves dependent on someone disqualification from serving, or injury of the patient. who would take care of and/or heal their illnesses, The article 951 of the current Civil Code2 gen- from the early days. Thus, the first medical activities erally regulates the matter in determining that the had mystical-religious nature, and the figure of the articles 948, 949 and 950 are applied in cases of physician was represented by the mage or priest, compensation payable by the one who, in the ex- who grounded their healing techniques in super- ercise of professional activity, by negligence, impru- natural powers. There was, therefore, absolutely no dence or malpractice, causes the death of the pa- knowledge about the disease etiology and conse- tient, worsen their suffering, causes them injury or quences of the treatment on the human organism. disables them to work. Such responsibility has as its According to Kriger1, the Code of Hammura- normative assumption the article 186 and the head- bi provided for the amputation of the hands of the ing of the article 927, which provisions concentrate doctor who would not get succeed in surgical inter- the illicit act in the culpable conduct of the agent. ventions. In ancient Egypt, the physician who would Still, in this context, it is worth pointing out disrespect the methodology contained in the book the distinction between culpability and medical -er of medical conduct was condemned to death, re- ror. According to Cavalieri3, medical errors will be gardless of the evolution of the patient’s condition. set when the professional conduct is correct, but In Rome, with the advent of Lex Aquilia, it was pos- the technique is not, there is a failure of the nor- sible to formulate the concept of culpability from mal man, so that, for medical error to be excusable, medical procedures, such as the abandonment of besides having in mind the circumstances of the patients and the refusal to provide medical assis- case, it should also be proven vincible to the aver- tance as well as errors arising from malpractice and age medical culture. Thus, there will be malpractice dangerous experiments. As consequences of such when the technique is correct, but the medical ap- illicit, Law Aquilia imputed the death penalty or de- proach is incorrect – it implies a lack of diligence or portation to the physician. prudence in relation to what is expected of a good The medical liability was initially disconnected professional. from the culpability and took a punitive nature, em- In addition to the civilist legislation, subjective bodied in corporal punishment. As law evolved and responsibility of the physician earns guard in the medicine joined the scientificity, the liability of the Code of Consumer Protection (Código de Defesa do physician assumed a subjective character, which, to 4 set up, would require the identification of the culpa- Consumidor – CDC) , which provides, in Article 14, ble conduct of the physician as well as establishing §4, that the responsibility of this professional is de- the causal link between that and the harm suffered termined upon verification of fault. It is noteworthy by the victim. Along with these considerations, the that the subjective civil liability of the physician de- 4 aim of this article is to analyze the liability of the fended by CDC refers only to the professional, not physician in practicing the dysthanasia. The meth- favoring, therefore, the legal entity for which they odology refers to literature and analysis of a hypo- work as an employee or part in society, as described 3 thetical case study to illustrate the discussion. by Cavalieri . Thus, if several physicians decide form a company, the liability of the legal entity will not be subjective. Medical liability and the legal system According to Miragem5, hospitals and other private health institutions are considered providers In Brazilian history, according to Kriger1, the of healthcare services, finding themselves in this first legal document that provides for the liability way under the auspices of Article 3 of the CDC4. As of professionals involved in the medical field was a result of this legal determination, and by virtue of the Penal Code of 1890, that stipulated in Articles Article 14, caput, of the CDC, such providers are re- article Research 296 and 306, the penalties incurred to faulty medi- sponsible for the harm caused to patient-consum- cal acts committed by imprudence, negligence and ers, regardless of fault, ie, their responsibility is ob- malpractice, or breach of any regulatory provision. jective, accountable to the patients as they offer a In the civil context, the Civil Code of 1916 stipulated defective service. A case of aggravation of illness by in Article 1545 the civil liability hospital infection exemplifies the statement. of the physicians, who would be obliged to re- Therefore, it is not enough just to set the cul- pair the harm whenever of imprudence, negligence pable conduct of the physician to accuse them of Rev. bioét. (Impr.). 2013; 21 (2): 304-12 305 Liability of the physician in the practice of dysthanasia responsibility, it is also necessary that the impru- presence of their assumptions, ie the medical volun- dence, the negligence or medical malpractice cause tary conduct, the unfair harm suffered (which may any harm to the patient. According to Kfouri6 medi- be either on- or off- balance sheet) and the causal cal compensable damage can be physical, material link relationship between the harm and the medical or moral. For the author, the physical harm becomes action or omission. more important, given the medical activity to be ex- ercised, as a rule, on the body. In this case, the body injury consists of elements and variables compen- Legal nature of the medical liability sable separately, since the disability may be total or partial, permanent or temporary. Currently, there is no univocal thinking about The author considers that material damages the legal nature of medical liability, considering the are mostly consequences of physical harm, includ- different ways in consolidating the provision of med- ing the loss of earnings (by stop working either ical services. Thus, this can be both contractual and temporarily or permanently), medical and hospital extracontractual, ie, the medical service may be due expenses, drugs, hiring other health professionals, to previously established agreement between the in short, all costs related to the damage arising from parties - physician and patient - in which the patient medical conduct.