Responsabilidade civil do cirurgião plástico na cirurgia estética à luz dos tribunais brasileiros.

Abstract

The general objective of this work was to analyze the legal nature of the plastic surgeon's civil liability for medical error in strictly aesthetic surgery in the light of the understanding of the Brazilian courts, especially the Superior Tribunal de Justiça. To this end, with regard to the specific objectives, the monograph initially sets out to study civil liability as a sanctioning institute in the Brazilian legal system; subsequently, it analyzes the civil liability of doctors in the light of the Código de Defesa do Consumidor; and finally, it investigates the understanding of Brazilian courts regarding the civil liability of plastic surgeons in aesthetic surgery, establishing the study of the legal nature of the obligation assumed in plastic surgery. In order to achieve these objectives, the hypothetical-deductive method was adopted, and the type of research was eminently bibliographical and documental, based on consultation of doctrine, academic articles, dissertations and theses, as well as the study of legislation and research into court case law, using a qualitative, exploratory approach. It was considered that the relationship between doctor and patient constitutes a consumer relationship and, therefore, the Código de Defesa do Consumidor is invoked in the civil liability of the medical professional, who is subjectively liable and, as a rule, assumes an obligation of means towards his patient. However, when it comes to cosmetic plastic surgery, which is not therapeutic in nature like other medical specialties, the prevailing understanding in doctrine and established in the courts, especially in the Superior Court, is that the surgeon's obligation is one of result, with the professional being bound to the beautifying effect that is the object of the service, without which contractual default will be characterized. Furthermore, in the context of cosmetic surgery, civil liability remains subjective, however, there is a presumption of guilt on the part of the doctor, and in these cases the understanding of the inversion of the burden of proof is automatically consolidated. Notwithstanding the authoritative doctrine and jurisprudence in this position, there is a current that understands cosmetic surgery as an obligation of means, resulting in traditional subjective liability, while a third current is affiliated with the obligation of result, however, establishing a direct relationship with objective liability, regardless of fault. However, this is not the understanding that prevails in the judgment of concrete cases, where the liability of the aesthetic surgeon is characterized as subjective with presumed guilt for the obligation of result.