Relação médico-paciente: o respeito à autonomia do paciente e a responsabilidade civil do médico pelo dever de informar

Abstract

The doctor-patient relationship studies have been acquiring a new parameter, not only due to the biotechnological advances or to the mass service of this activity, but mainly for the principles that underline such studies as the human dignity and autonomy, which are established in the Brazilian Constitution of 1988. The focus of this paper is the predominantly existential characteristic of the legal relationship arising from the private contract, regulated by the Civil Code, the Code of Consumer Protection, and other deontological rules and laws. This doctor-patient alliance is based on trust, intuitu personae, ensured by a fee, between the doctor and the client. It occurs because the aim of the contract for providing medical services is the patient s social and psycho-physical health, dignity and well-being, which requires a new concept for the doctor-patient relationship legal treatment, its structure and function, which is no longer restricted by the patrimonial aspect existing in nineteenth-century perspective. There is a transition from a logic-authoritarian to a dialogic-consensual profile, in which the patient s freedom of choice prevails. The patient s autonomy is the mainspring of this relationship from which many rights and obligations emerges, with a greater emphasis on the doctor's duty to inform. The information is what allows the patient to exercise their self-determination, its power to decide about its own body through medical intervention, including diagnosis, therapeutical, surgical services and preventive research on human beings. Only after being adequately informed about their health, the proposed treatment, benefits and risks involved, duration, cost and the nature of the procedure, among other factors, is when the patient might give the doctor its informed consent to perform the medical actions to which the patient is subjected to. The free and conscious consent of the patient is one of the most important dimensions of the autonomy principal and it makes the medical action legimate. Patient autonomy has a paramount significance, therefore the physician s inobservance of this principle, regardless of the practice of medical error, can give rise to tort law by configuring alone tort or defect of form of the medical service, which confers the right to awards of damage unfairly suffered, as it has been recognized by the Brazilian Courts.