Civil Responsibility of the Medical Resident: Jurisprudence in the State of São Paulo

Abstract

During residency, physicians can be sued for medical errors under civil or consumer legislation, as a public or private service provider, respectively. This research evaluated the jurisprudence of the regional Court of the state of São Paulo in which medical residents figured as defendants in medical malpractice lawsuits, from January 1998 to December 2016. The Court decisions indicated that when residents were accompanied by their academic hierarchic superiors in the litigation, the claim evaluated only the conduct of the later, except in gross negligence cases. When they were sued with other physicians of the hospital staff with whom they did not share academic relation, their conduct in relation to the alleged damages was individually evaluated for negligence, violation of the standard of care, and recklessness. In the litigations in which they were the only defendants along with the hospital, they lost the case in only two occasions (14.3%). Although many of the private institutions of this jurisprudence also provided public services, both their physicians and residents should not have participated in the litigations, as it is legally forbidden for public agents to do so, but their legitimacy as defendants was not timely contested. The medical duty to provide information to the patients was emphasized in many decisions, in order to explain conducts and possible adverse effects. Lacking of documentation of such procedures per se may bring the understanding to the magistrate that punitive damages are due.