Responsabilidade penal por erro médico: É possível a ocorrência de penalização por dolo eventual?

Abstract

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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