Surgeons ask for revision of the concept of medical error – 04/08/2023 – Health

The CBC (Brazilian College of Surgeons) delivered to Minister Edson Fachin, of the STF (Federal Supreme Court), a request for the revision of the concept and nomenclature of medical error in indemnity lawsuits across the country.

According to the entity, there is an advance of actions entitled as “medical error” even at the beginning of the judicial process, which imposes guilt on the defendant even before any judicial decision attesting to any failure of medical and hospital assistance.

The request is that, when there is a lawsuit against a doctor or a hospital, for example, the process is not initially labeled as a medical error, but rather as an adverse health event.

“If by chance, once judged, this process finds a medical error, then it should be disclosed as such”, says the president of the CBC, Luiz Carlos von Bahten.

According to him, the bad result of a procedure is not necessarily due to a medical error. “Patients are different, individuals are different, diseases are different.”

Bahten argues that, in a medical process, it is necessary to observe whether the best practices and conducts were followed. “The results are always sought to be the best possible, but a negative result does not necessarily mean that there was an erroneous procedure by whoever was in charge of the team.”

In addition to the document delivered to Fachin during the congress of surgeons in Florianópolis, Santa Catarina, last weekend, the CBC filed with the CNJ (National Council of Justice) a request for action and an injunction, requesting the immediate replacement of the nomenclature.

Minister Luiz Felipe Salomão, national justice inspector, issued an order forwarding the case to the special secretariat of the CNJ, which is now studying a possible change.

According to lawyer Antonio Couto, from A. Couto & Souza Advogados, the problem occurs because the CNJ, the body that regulates the administrative part of the Courts of Justice, has a unified procedural table in which it adopts numbers (9995, 10503, 10434 and 10440) linked to the medical error topic.

For example, an indemnity in the health area, for moral or material damage, against a doctor and a hospital appears in the CNJ system as: 10503 medical error. “This happens when the process is still at the beginning. When it is not yet known if there was an error and if it was the doctor’s. It is an error”, says Couto.

For the lawyer, the use of this expression at the beginning of the judicial process leads to a bias on the part of one party to the detriment of another and encourages unrealistic statistics of medical errors.

Another argument used in the letter delivered to Fachin is that the CNJ’s administrative table does not use terms such as “engineer’s error”, “lawyer’s error” or “error” of any other self-employed professional. “Which highlights the inappropriateness and untimeliness of the nomenclature used.”

It is also mentioned the fact that personal and sensitive data of the medical professional are being marketed and labeled as “causing error”, before due legal process.

According to Couto, a simple solution would be the public suppression of the expression “medical error”, maintaining internal control of its numerical codification in the CNJ. That is, the numbers 9995, 10434, 10440, 10503 would remain as unique indicators of this type of demand.

“Here, no proposal is questioned to protect the doctor to the detriment of the consumer. It is just an adaptation of the nomenclature”, says the lawyer.

According to the CNJ report, in 2021, the country recorded 500,000 health-related processes. Of these, 35,000 were lawsuits for medical malpractice, which corresponds to 95.8 lawsuits per day.

Among the medical specialties most exposed to the risk of indemnity proceedings are obstetrics and gynecology, plastic surgery, orthopedics, emergency medicine and general surgery.