Natureza da responsabilidade civil do médico na realização de cirurgias plásticas

Abstract

Civil Responsability is a renowned institute of civil law whose historical origins date back to antiquity. It is a fundamental principle of law to which it is not lawful cause harm to others, and when the damage occurs, comes to the agent the obligation to repair the damage. The relationship between doctor and patient, which was once based on personality, based on the family doctor figure, nowadays is increasingly depersonalized, and the doctor has been considered a service provider, the relationship is governed by consumerist code, featuring itself as a consumer relationship. Despite the Consumer Protection Code adopted strict liability as a rule in consumer relations, it was made an exception in case of self-employed professionals, when responsibility is subjective. When it comes to cosmetic procedures, however, especially with regard to cosmetic surgery, a significant part of the doctrine and jurisprudence considers that plastic surgeon obligation when performing cosmetic surgery would be a result obligation, namely to achieve the expected result. Such an understanding does not seem appropriate because medical activity in any area is permeated by the alley, with results often unpredictable, unrelated to doctor´s will. Moreover, considering the obligation assumed by the plastic surgeon as a result obligation is equivalent, in practical terms, to turn it into a strict liability, going against the consumerist law and making it impossible to the professional to practice Medicine.