MATIAS, J. P. M. F.; http://lattes.cnpq.br/1382404741515713; MATIAS, João Paulo Moreira Fernandes.
Résumé:
This monographic work aims to study and develop the debate about criminal liability for
medical malpractice and its penalization for eventual malice, through the analysis of the Code
of Medical Ethics, the Penal Code and the opinions of renowned scholars. The present work is
classified as descriptive and qualitative, as it will explore the question of penal responsibility
for medical malpractice, applying a theoretical approach, bringing specific cases to obtain
concrete information. This will be done by means of a bibliographic review, using articles,
reports, research, jurisprudence and books. Regarding the objective, which is to demonstrate
the possibility of eventual malice when medical error occurs, the analytical-descriptive
methods were applied, analyzing all the data, information, and concepts critically to later seek
to expose and solve the problems arising from the question of criminal liability for medical
error in the Brazilian courts, answering the question of the possibility of the occurrence of
eventual malice. Thus, this will be a qualitative research, analyzing and interpreting the
concepts and information extracted from the study. Furthermore, it is intended to understand
and investigate malice and crime; forms of causing damage and illicit acts: imprudence,
carelessness, and negligence. The great debate revolves around the possibility of eventual
malice and conscious guilt in medical practices that can cause harm to patients. In light of
this, the focal question of this work is: is it possible to penalize a medical error based on
eventual malice? The hypothesis that I put forward is that yes, it is possible to penalize
eventual malice in cases of medical error, but it is necessary to have unequivocal proof of this
situation, since it will lead to more severe liability. Therefore, this work aims to analyze the
different types of responsibilities that can be attributed to physicians instead of acting
according to the professional and legal duties required, primarily addressing the criminal
responsibility and its assumptions.
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