Criminal liability of medical professionals in the São Paulo State Court of Appeals

• Main Authors: Isabel de Fátima Alvim Braga, Laila Zelkcovicz Ertler, Rodrigo Moreira de Aquino, Bruno de Avilla da Fonseca e Silva, Renata Bastos Mello Pereira
• Format: Article
• Language: English
• Published: Instituto Israelita de Ensino e Pesquisa Albert Einstein
• Series: Einstein (São Paulo)
• Subjects: Damage liability; Medical errors/legislation & jurisprudence; Legislation; medical
• Online Access: http://www.scielo.br/scielo.php?script=sci_arttext&pid=S1679-45082018000100202&lng=en&tlng=en

ABSTRACT Objective To collect criminal justice data involving medical professionals in the São Paulo State Court of Appeals and to establish the number of criminal proceedings involving said professionals, the content of the accusations and the conviction rate per specialty. Methods A keyword search was carried out in the State Appellate Court case law website with the term “medical error” for decisions rendered from January 1st, 2011 to December 31st, 2016, and the subject “criminal law” was selected. Results A total of 34 cases met the inclusion criteria and were analyzed. Lower court's convictions accounted to 73.5% of the cases, with a slight tendency towards increase over the years. The number of cases per medical specialty was ten cases of clinical emergency, eight of obstetrics, seven of surgery, three of pediatrics (one case was related to pediatrics and obstetrics), two of orthopedic surgery, two of clinical director, one anesthesiologist and one nonemergency internal medicine physician. Among these cases, 6 were related to bodily injury, 26 to homicide and 2 criminal contempt. Conclusion The physicians most exposed to medical error were from surgical specialties, probably due to the higher rate of complications associated with the procedures, and emergency physicians, professionals who need greater qualification.