Controversies of all kinds are submitted to the State Courts, which, overcrowded with
cases, overwhelm judges and civil servants, resulting in an extension of time for
the analysis and resolution of disputes, which ends up wearing out all the parties
involved. Therefore, it is a fact that the so-called alternative methods of conflict
resolution, which are the “extrajudicial” ones, such as Mediation and Arbitration,
have gained increasing notoriety in Brazil since they were timidly put on the agenda
in the mid-1980s.
The issue of civil liability is one of the most complex and extensive in modern Law,
and medical malpractice is one of the most serious injuries to the legal good of the
human person. Celso Barros Coelho defines that treating them together, establishing
interconnections, is a difficult task, as it leads the scholar to investigations in
different fields: where the Law operates and where the doctor works1. The physician is liable for subjective liability (guilt) for any material, moral
and/or aesthetic damage caused to the patient.
THE DOCTOR AND HIS OBLIGATIONS
Medicine assumes a commitment of means and not of end or guarantee. That is, in civil
liability for the provision of medical services, it is understood as an adverse result
when the doctor has applied all viable resources and still does not obtain the intended
performance or even differentiate it from an unpredictable accident (fortuitous event).
At this point, the first obstacle to the term “medical error” used in the media is
found, frightening the general public with false judgments of those who go looking
for a good and achieve a bad thing. Sometimes, discerning among such events requires
refined and technical attention.
Thus, it is worth clarifying the reiterated term “medical error.” Medical error is
a media designation of the damage caused to the patient through the action or inaction
of the professional service provider without the intention of committing it. There
are three possibilities for such an error: imprudence, malpractice and negligence2. In the Doctrine of Law, it is known that these three pieces are bases for the configuration
of guilt stricto sensu when talking about Civil Liability1,2. Negligence is said to be omissive, while imprudence and malpractice, commissive.
There is a judicial, and consequently public, understanding that some medical areas
are premised on the delivery of results, with an obligation of the end (or guarantee),
as is the case of plastic surgery. The issue of obligations in medical and dental
services is controversial. According to Marta Maffeis Moreira, it is necessary to
understand the contract established between the health professional and the patient,
that is, what was the contract of locatio conductio3.
The knowledge of a procedure classified as having only an aesthetic character brings
with it the bond of an obligation of result, based on the Consumer Law Code of 19904.
Guzman Mejia5 claims that an effective legal system can hold the physician’s service accountable,
provided that it understands the proposed medical therapy and the reasons for such
a proposition. In other words, in the specific case of certain practices, how to determine,
eliminating the superficiality of the term “aesthetic,” the obligation of the doctor
who proposes a procedure, evaluating not only the procedure itself, but also understanding
what it proposes to treat.
THE PROSECUTED DOCTOR
From the moment of its citation, and here we speak exclusively of an indemnity process
for damage, therefore of Civil jurisdiction, until the final res judicata of the applicable
last resort, the physician finds himself in the worst scenario he could have in his
doctor-patient relationship and often with the profession.
Regardless of whether guilt exists, doctors are negatively affected. Perhaps, at a
time when they have to face human fallibility. And, although not present, the accusation
of having failed affects not only their self-image but also their social image6,7.
Medical students and physicians are more likely to have anxiety, depression and suicidal
ideation than their peers in the general population. The medical culture perpetuates
these problems, being true “barriers” to possible treatments. Some authors have examined
myths and symbols that form the basis of medical culture and medical self-image, the
latter based on a decontextualized medical mythology, such as the myth of Asclepius8, resulting in an unbalanced, dehumanized sense of professional identity characterized
by unattainable expectations. It is a construct of the “medical persona,” which is
often sick, stressed, or even toxic9.
The prevalence of burnout in the medical population is significant, especially when
considering not only the effects on physicians as individuals but social effects at
the time the population that depends on these services and medicine itself as an institution
suffer10. There is a high prevalence among these physicians of abuse of alcohol or other legal
and illegal drugs, problems in personal relationships, anxiety and depression11,12.
Today, it is known that one of the predictive factors for such a diagnosis in a medical
professional is the knowledge that this professional is experiencing legal problems
with his patients13. It can also be said that stressed, depressed and sleep-deprived physicians are more
exposed to making a mistake in their service delivery, a situation that can perpetuate
or exacerbate the burnout diagnosis14,15,16.
A study conducted in the 1980s in Chicago matched a random sample of members of the
Chicago Medical Society on the impact of medical malpractice litigation (or the mere
prosecution of this event) on physicians’ personal and professional lives. They were
divided into two groups: one of the doctors with disagreements that have not been
judicialized and the other already litigating in the Judiciary.
The difference in the severity of depressive symptoms present in the second group
of physicians was significant, with an “unwillingness” to attend to certain types
of patients, such as those related to aesthetic procedures or those with a high-demand
profile and who led their doubts to a guarantee of results; other data from this group
of doctors, who already had the judicialization of a disagreement in their lives,
were their desire for early retirement and the discouragement of their children entering
medical schools17. These are situations, concludes the author, that undoubtedly affect the doctor’s
professional path, as well as the lives of their families, patients, and the entire
provision of medical services18.
US data bring to the years 2007/2008 the impressive proportion of 42% of physicians
in the country being legally sued for bad professional practice, without analyzing
the merits of the request19, with a higher rate of involvement among surgical specialties and gynecology and
Data from US liability insurers shows that most claims of medical malpractice, malpractice
or recklessness are unsubstantiated, with nearly two-thirds of claims being dismissed,
withdrawn or dismissed. Of the 10% of claims that progress through the procedural
rite until their final decision, almost 90% have their decisions in favor of the doctor20. However, during all the procedural stages, adding to uncertainties and financial
expenses, the doctor’s psychosocial involvement is exactly the same as the doctor
It is true that, specifically for the Brazilian doctor, since a set of rules and regulations
valid in the national constituency are being evaluated, there are points that are
worth the discussion about “what weighs most in the disputes referred to State protection,”
generating this positive feedback for their burnout (Figure 1). Some of these points are listed below from the evident point of view of the physician.
Figure 1 - New approach proposal to the questioning of health actions. Source: Author
Figure 1 - New approach proposal to the questioning of health actions. Source: Author
DEFENSIVE MEDICINE AND DOCTOR-PATIENT DISTANCING
Considering the overview of the doctor in the Judiciary, let us take as a step the
understanding of some psychosocial consequences adopted by the category and by the
insurance industry with coverage in civil liability that surrounds it in the last
decades to try to circumvent such judicial events, in the sense of minimizing harm
to the medical professional. Would this statement be true?
Despite the great criticism of civil liability insurance coverage or even the suitability
of some insurers, perhaps the focus here is on pointing out what this shield, what
this supposed protection has contributed to the doctor, the patient and their relationships.
Believing that insurance is a guarantee of repairing the damage committed is to abstract
from reality all the humanistic possibilities involved in a medical act. Shielding
the professional’s assets is one of the most obvious reasons for contracting civil
liability insurance, given the content explained in the downstream item “procedural
In the legal field, prophylaxis is understood to be what is clearest, for the Law,
in the relationship with the patient: the positivization of contracts, not only for
the provision of medical services but also the lack of knowledge and understanding
of everything that has been said and explained about the diagnosis and recommended
treatment plan. The latter is understood to be free and informed consent terms, notifying
the patient’s information and the doctor’s safety who, in good faith, provided clarification
to what was then understood by the Consumer Code to the hyposufficient party.
The extreme specialization of doctors, technology, and technical and human apparatuses
surrounding them contribute to this distance. National and international studies point
to the current demand for reversing the deterioration of this relationship22. The authors open similar questions, including the need for government programs and
incentives from undergraduate medical education to take care of this distance inherent
to our time to medical retraining programs so that professionals do not depend on
personal experiences. This must be a social demand.
The physician’s behavioral change is not so recent. Conducted in 2015, a survey of
breast pathologists found that more than 80% of them requested testing in response
to fears of malpractice, recommended additional surgical sampling or requested more
opinions. These defensive practices were attributed as having important implications
for health costs and patient safety23.
Another recent national study on the subject concluded that always in the light of
ethics, the consequences of defensive medicine and its knowledge on the part of patients
tend to make the doctor-patient relationship even more difficult due to the reduction
in patient trust concerning the professional. Extending deadlines for diagnosing the
health problem to seek a cure and punishing the patient who depends on the Unified
Health System substantially increases the cost in public and private spheres. The
same study also concludes that the lack of incentives for mediation and conciliation
in the hospital area also favors defensive medicine since the doctor would feel more
protected if each institution had an internal segment to take care of relationships
with patients, something that is not observed worldwide. Of the group investigated,
the majority resort to defensive medicine to protect themselves from lawsuits for
ANALYSIS FACTORS FOR INDICATION OF LEGAL THERAPY
National legal regulations excelled in the Principle of Publicity, which makes all
procedural acts public, available for access and consultation, both for the parties
and any interested person. However, it is not a full rule since it is established
in our Federal Constitution, in its Article 5°, item LX, the possibility of restricting
the publicity of procedural acts when the defense of privacy or social interest so
The publicity of judicial acts is a fundamental right, which aims to allow the control
of public opinion on the services of justice, observing the power that was invested
in the judge who, in his function, represents the State. Therefore, there is an intimate
relationship between the Principles of publicity and the motivation of judicial decisions,
as publicity participates in effectively controlling these decisions. That is, it
is a true instrument of effectiveness in guaranteeing the motivation of court decisions25.
The expression “secrecy of justice” is notoriously inappropriate, as it is not a matter
of secrecy since the trial does not take place behind closed doors. Rather, care is
taken to protect the litigants’ privacy or prevent publicity from causing great inconvenience
or social commotion. However, the parties and their attorneys have access to the records,
including obtaining certificates. In this sense, when dealing with the matter, the
Constitution used a more appropriate expression, namely: restricted publicity26, which occurs in judicial proceedings related to family law and childhood and youth
Even though its publicity is restricted, the judicial process guarantees the non-circulation
of the case’s contents and its procedural steps; it does not preserve the name of
the parties involved in a dispute. And it is at this moment that the doctor, with
his name exposed, even though, exceptionally, he has guaranteed secrecy of justice
due to confidential data from the medical record, is adrift of public opinion27.
In social networks, what was supposed to be an event becomes a court of Exception,
temporarily formed to judge a specific case (or some cases) after the crime has been
committed. As a classic example, the Nuremberg Tribunal created by the Allies to try
the Nazis for war crimes28.
The danger of this exposure on social networks is the channeling of public opinion,
invariably partial in its judgments, even because it is pre-directed according to
decisions adopted by this same media court in similar cases.
The growing call for judicial protection, with a continuous distribution of facts,
added to the state infrastructure deficit to house these actions, and the still low
number of magistrates to meet all demands in the national territory attest to the
amorousness in the processing of judicial processes, for so long, object of discussion
in the doctrine, since it generates legal and social insecurity, with feelings of
helplessness and discredit on the part of the jurisdictional parties29.
In her master’s thesis, Simone Oliveira, when understanding the temporal bases of
the process, exposes the following question: “In the observance and application of
the principle of the reasonable duration of the process, we cannot avoid the following
question: reasonable time of the process would be the one foreseen in procedural legislation,
or would it be the time needed to resolve the dispute according to its complexity?”29.
In the vast majority of cases, the evidentiary phase of a process involving a medical
case depends on specialized expertise that supports the court in conducting the dispute
on reasonable terms. At this procedural moment, even though there are rules and determinations
of the court related to time, it comes up against insurmountable administrative issues.
As already explained, the need for expert evidence is almost certain in disputes between
doctors and patients. The court, based on which party requests this expertise, or
even understanding that it is part of the criterion for reversing the burden of proof
to the medical party, or even understanding the possible gratuitousness of justice
demanded by the patient, decides whether the medical expert summoned and duly registered
as an assistant to justice, a professional you trust will be required, or the regional
state agency responsible for carrying out medical examinations will be asked to be
available to attend to the specific case.
The Institute of Social Medicine and Criminology of São Paulo (IMESC), an autarchy
linked to the Secretary of Justice and Citizenship of the Government of the State
of São Paulo since 1970, today considered the largest center for Forensic Medicine
and Genetic Link Investigation of Latin America, handles demands, through expert appointments
with an approximate wait of 8 months for the on-site expert examination, and an average
time of delivery of the expert report in another 4 months from the physical examination.
In addition to a structural reform on the part of the State, to ease the stiffening
caused by the excess of procedural demands, it is necessary to implement self-compositional
means of conflict resolution, such as mediation or conciliation; or even the optimization
of part of this high demand through other heterocompositional possibilities, such
as the validation of arbitration chambers for the resolution of disputes whose objects
are of available rights, a subject to be dealt with in a later chapter.
Specificity of the relationship
From the doctor-patient relationship, which is so specific, litigation could not be
expected that would not include all the unique understandings of this bond. From this,
the need for specific knowledge of the judge is faced. Therefore, once again, the
peculiarity of the relationship and the conflict demand a technical solution that,
in the Judiciary, would probably be relegated to expertise and that could better be
dealt with, from this point of view, in the arbitration scope or by any autocompositional
The judge, a word originated from the Latin iudex, is the one who judges, who says the Law, exercising jurisdiction, being, therefore,
an authority invested with power to, saying the Law, resolve the conflicts of interest
submitted to it30. However, this judge, endowed with a strong legal basis, is not fully qualified to
develop opinions on specific matters related to other professions. And it is in this
gap in technical training that an arbitrator or mediator, with a full understanding
of the matter, in the case under discussion, medicine, would stand out from the State
judge, even if he does not perform the expert function completely differently.
The motivation of the sentence is what makes the judicial decision democratic (the judge is not elected, but, by
imposing that he decides based on the established laws and demonstrates having done
so, the Judiciary becomes part of a democratic system and non-aristocratic - which
is what would only follow from the nomination by competition, among the best). The reasoning of the report and the explicit demonstration that the scientific method was strictly followed is
the guarantee that the document is not a mere opinion, prejudice or concept compromised
by the ideology, ignorance, or interest of the expert31.
As a rule, for filing any lawsuit, it is necessary to advance procedural costs by
the plaintiff, which are not related to the fees owed to the lawyer for the provision
of services. In reality, they are amounts paid directly to the State through cost
guides issued by the collection systems, which vary among the entities of the Federation.
Some situations alter this circuit of procedural costs, which is the allowance for
these if free judicial assistance is granted, at least while the beneficiary party
does not have the financial conditions. This happens a lot with the “patient” part
here in Brazil.
Obviously, the costs with the legal team are taken into account, not only to whom
the party hired, but also, at the time of judgment or final decision, the fees of
the attorneys of the opposing party.
However, lately judged, the high indemnity values bring the medical causes to the
category of the highest costs observed in the Judiciary. This involves, in most cases,
the sum of the material damages caused and moral damages, and in some situations,
overlapping the aesthetic damages.
FORMS OF RESOLUTION OF CONFLICTS OUTSIDE THE STATE GUARDIANSHIP
Justiça Multiportas (Multi-Door Justice) is the expression of a new architecture for
the protection of rights, composing together with the State protection alternative
possibilities of access, several doors, and several justices for a single purpose:
the resolution of the conflict. Evidently, the great “atrium” of the Judiciary represents
the security of the structure designed for the fundamental rights of individuals and
groups, basing the security that the investment in any other dispute resolution system
will be valid as long as it is also at the same time, constitutionally appropriate32.
This new adequacy of justice meets the available and unavailable legal situations,
individual and collective, between public and private parties, being a distinctive
point in the history of accessibility to rights and justice.
Justiça Multiportas is shown in the Civil Code and Process (CPC) by entities known
as mediation, conciliation and Arbitration, registered in several passages, with the
clear intention of encouraging a new dimension for all those involved with the protection
of rights, including the legal operators themselves, from whom cooperation is required,
as in the mandatory conciliation and mediation hearing, provided for in Art. 334 of
the new regulation32.
The appropriate work method for resolving conflicts must be distinguished from judicial
litigation. In the State tutelage, the parties are essential characters, in theory,
but, in practice, they do not perform such an effective function except in searching
for the merits of the issue in the judicial demand. These act through their lawyers,
who invest in technical discourse, and the magistrate, in a retrospective look at
the dispute, grant the decision.
MEDIATION AND CONCILIATION
In autocompositional methods, on the other hand, the parties are the effective protagonists
of the procedure. The objective, especially of mediation33, gives interested parties the ability to identify the core of disputes and, supposedly,
to implement a dialogue. In this vein, we speak of a prospective vision, when in order
that skills developed in the course of the proper procedure those parties not only
resolve the conflict but are also able to avoid new lawsuits, we look to the future.
Of the various guiding principles of our legislation, those of autonomy of will and
confidentiality, currently supported by the CPC in its § 3 of Art. 165, flowing on
the mediator’s duty to help “the interested parties to understand the issues and interests
in conflict so that they can, for the restoration of communication, identify, for
themselves, consensual solutions that generate benefits mutual”34.
Conciliation and mediation are two distinct self-composition methods, as the new process
code itself indicates:
Art. 165. (...) § 2 “The conciliator, who will act preferably in cases where there
is no previous relationship between the parties, may suggest solutions to the dispute,
being prohibited the use of any type of constraint or intimidation so that the parties
Art. 165. (...) § 3 “The mediator, who will preferably act in cases where there is
a previous relationship between the parties, will help interested parties to understand
the issues and interested parties in conflict, so that they can, by reestablishing
the communication, identify, by themselves, consensual solutions that generate mutual
In mediation or judicial conciliation, the parties must be accompanied by lawyers
or public defenders, as provided in § 9 of Art. 334 of CPC/15 and art. 26 of the Mediation
Law, except in cases where the lawyer is dismissed, as in the scope of Law 9,099/95.
However, when the procedure is extrajudicial self-composition, the presence of a legal
professional is not essential. However, it is worth noting that this professional
follow-up is always good manners, as the parties will issue wills and enter into commitments
with legal consequences.
In the US states where such possibilities are effective in mediation and arbitration
cases, the Courts understand that based on “consent, not coercion” and that “the interpretation
of private contracts is normally a matter of State law” causes these Courts not to
meet to review them35.
The idea that the arbitration process is nothing more than an alternative dispute
settlement mechanism has long been overcome. It is an alternative because it still
timidly, even today, helps in a limited way the state jurisdictional action. Although
born conventionally, it develops concretely in terms of the general theory of the
process. It acts and takes place in a procedural environment. But that, in most cases,
departs from the state model because it contains instruments that act in a typical
way, although with the same stabilization of decisions and the respective pacification
of conflicts. And in some situations, more efficiently than in the state sphere. There
is greater procedural flexibility compared to the state process. It is said, therefore,
that the arbitration process achieves levels of procedural adaptability in degrees
The autonomy of the will as a presupposition and principle of the arbitration process
is a key element of the method: the autonomy of the will, instrumentalized by the
arbitration agreement, whether through an arbitration clause or arbitration commitment37.
The agreement of an arbitration clause, due to the autonomy of the will between the
parties, is a prerequisite for the arbitration process to exist. Fazzalari sees the
convention as a harmful matter, as it has to be appreciated before the merits, subject
to the analysis of this38. In contrast, the arbitration commitment takes place during the arbitration process
simply because the autonomy of the will is a principle of the arbitration process.
Another element is the need to arbitrate only available rights. Unavailable is the
right that is not justly enjoyed, which is inalienable or inalienable. Unavailable
are the rights that the person cannot give up, such as the right to life, liberty,
health and dignity. A person cannot sell an organ of his body, even though it belongs
As a matter of principle, health is not very appreciable pecuniarily. Therefore, it
is not a heritage asset, as it is not established available. From this perspective,
at first, it would be said that there is no arbitrability for its defense, which is
not at all the truth.
Although the health path is a non-patrimonial good, the defense of the right to this
can contain, first, patrimonial rights and health only appear as a scenario, a background
of the conflict. In this way, the right to health is sometimes directly defended.
In other cases, defending health implies indirect defense, specifically when the main
relationship is economical, obligatory and contractual40. Health is a non-patrimonial and unavailable asset. However, contractual relationships
between doctors and patients, health plans and beneficiaries, hospitals and users,
among others, establish consideration for the health service, and this contractual-obligatory
relationship translates into pecuniary terms41.
It is worth mentioning that there is a hypothesis of the existence of a conflict of
an available property nature instituted in Arbitration, and during the process, a
controversy of unavailable right arises. Nothing prevents the suspension of proceedings
and the referral of the case to the Judiciary so that only after a judicial decision
on the non-patrimonial matter is returned to Arbitration, as provided for in Article
25 of Law 9,306/96;
“If in the course of the Arbitration, a dispute about unavailable rights arises, and
it is verified that the judgment will depend on its existence or not, the arbitrator
or the arbitral tribunal will refer the parties to the competent authority of the
Judiciary Power, suspending the arbitration procedure. Sole paragraph. Once the preliminary
question has been resolved, and the sentence or judgment has been added to the case
file, the Arbitration will proceed as normal.”
SUCH LEGAL THERAPEUTIC FORMS IN HEALTH
The term ADR, for Alternative Dispute Resolution, is commonly used in some countries
such as the United States of America (USA) to designate a variety of dispute resolution
mechanisms, enabling the fulfillment of a wide variety of social, commercial, legal
and political parties, as presented in the comparison between the forms of ADR (mediation
and arbitration) and the judicial procedure, as shown in the following table, available
at Ribeiro42 (Table 1).
Table 1 - Comparison between the achievement of objectives of those involved with the use of
Alternative Dispute Resolution (ADR) mechanisms and judicial proceedings.
|Objectives of those involved
|Get neutral opinion
Table 1 - Comparison between the achievement of objectives of those involved with the use of
Alternative Dispute Resolution (ADR) mechanisms and judicial proceedings.
It is of social interest to create a culture in which not only the individual doctor
but a health system does not practice “defensive medicine,” a clear occurrence due
to the previously exposed whole, but promotes improvements in their individual and
systemic care. For such effectiveness, the system must promote a culture of open and
efficient communication between physicians and patients, even after a negative result,
regardless of guilt43.
The Lexington, Kentucky, Veterans Affairs (VA) Medical Center was one of the pioneers
in this area. In 1987, the Lexington VA implemented a Resolution and Communication
Program, which provided full disclosure of the occurrence that resulted in harm, as
well as an expression of condolence on behalf of the institution and its clinical
staff. Under this system, patients and their families are invited to bring in lawyers
to discuss compensation offers at the beginning of the process, which is a milestone
for mediation in the North American healthcare sector44.
The mediation process can play a vital role in difficult communications after an adverse
medical event. The communication used by the team to calm the emotions of patients
and their relatives, the recognition of feelings, active listening and the expression
of empathy are important skills to deal with the emotional burden of the injured party.
Effective communication after adverse events has been proven to reduce the number
of lawsuits against the physicians involved in the case45.
In 2017, a study was published in the Journal of the American Medical Association
involving the experiences of a group of 30 patients with the Communication and Resolutions
Program in Hospitals in Boston, Massachusetts and California, 18 of whom had a good
experience with this communication channel and hospital conflict resolution45.
Non-violent communication, since it represents a strategic means of mediation and
its execution, guarantees the re-establishment of social relations based on the process
that will search for exchange between the parties to result in consensus46.
Perhaps the two biggest obstacles to mediating medical disputes come from the main
players: doctors and lawyers. North American studies on medical mediation show that
most mediations take place without the presence of the doctor for many reasons: (i)
they do not want to face their patients face to face; (ii) they are very busy in their
practices; (iii) they just want to leave it to their insurers to make the deal.
On the other hand, defense attorneys tell doctors not to attend mediation for fear
that doctors might be too outspoken and vulnerable to compromise in mediation or fail,
and the patient proceeds with litigation. In addition to discouraging doctors from
attending mediation, some lawyers do not advocate it for clear economic interests47. A US study showed that a lawyer spent an average of 3.5 hours preparing for mediation
and more than 36 hours preparing for a trial48.
The advantages of using Arbitration as a jurisdictional method for doctor-patient
disputes are recognized worldwide and a North American practice that has been defended
for decades49. Authors highlight the indisputable quality of the decisions made by technical arbitrators
in the matter due to the speed of resolution and also, as a consequence, the reduction
of procedural expenses50.
In March 2011, the Malpractice-related Damage Relief and Medical Dispute Resolution
Act was passed by the National Assembly of South Korea, taking effect one year after
its enactment. This Law supports a fair, quick and inexpensive solution to medical
disputes, focusing on alternative dispute resolution in malpractice cases, detaching
them, if so decided by the parties, from the civil courts51.
Such advantages of precision and efficiency in decisions must work to the benefit
of both plaintiffs and defendants.
The many advantages assumed by resolving disputes via Arbitration are still not convincing
to the physician, such as the speed of decisions, lower costs and the greater and
all-important confidentiality when it comes to medical malpractice claims. First,
because the results of related litigation are, in the state jurisdiction, generally
very positive for doctors. Of course, physicians understandably refuse to accept a
different resolution system when they are not convinced that the results will be equally
favorable, much less even better.
Physicians nowadays, and depending on the medical specialty, it becomes an intangible
truth; they are usually patrimonially shielded and protected from the costs and expenses
of such litigation by Civil Liability insurance. Thus, arguments about reduced arbitration
costs are unpersuasive for clinicians.
Third, while disputes can be resolved more quickly with Arbitration than through State
relief, other commonly reported advantages of Arbitration - such as the ability to
select their decision-maker and the availability of neutrals with specific experience
and privacy - may appear illusory for the doctor52.
Just as the legal prophylaxis of this professional relationship must be improved,
legal therapy must extend to other possibilities of resolution. It is like in Medicine:
if several antibiotics can effectively treat the same disease, you cannot say which
is the best course of action for that case. Perhaps here is a comparison with the
best experience of that professional for that event.
The best therapy is a sum of the appropriate therapeutic application, for that specific
case, according to the experience of the professional able to treat it.
Once these barriers are overcome, self-compositional methods such as Mediation and
Conciliation, as well as heterocompositive Arbitration, constitute effective means
for the relationship of contractual conflicts between doctors and patients, resolving
in a faster, less costly way, and perhaps, why not risk this characteristic, more
assertively, given the specificity of the mediators/ arbitrators chosen in the issues
involved in each specific case.
IMPRESSIONS AND PERSPECTIVES
The doctor-patient relationship has changed. The proposal to rescue the old formula
of this relationship is perhaps wrong. Society dynamically evolves in all its understandings,
just as it does in Law, long discussed by Hans Kelsen in his classic Pure Theory of
Law. On the other hand, medicine has changed. We evolved with technological, digital
devices that allow faster communication at a distance and with the possibility of
much more accurate diagnoses. However, as it narrows diagnostic possibilities, all
this evolution brings a less passive, more proactive patient and a doctor constrained
by conditions that can compromise him: Am I doing the right thing? Am I doing everything
I can for local conditions? Am I interpreting correctly? Is this report correct?
Perhaps, given the irrefutable speed and direction in medical technology, the great
“secret” lies in communication. However, it is worth remembering that we are talking
about and pointing to a modern relationship, informal and formal communication, humanized
communication and based on legal prophylaxis, respectively.
Empathy, putting yourself in the patient’s and family’s shoes, treating them with
information with respect and consideration, as with any loved one, helps a lot in
understanding, not only in the way of following up the patient who has suffered an
intercurrence, but it is fundamental in cases where discord is already established
on the part of the patient, being a basic principle of Mediation.
Self-compositional methods have been present in the medical profession for years,
even proposed by the Regional Councils of Medicine, with some ease, but there is still
much to be stimulated in these methods. Perhaps the greatest barrier is the culture
of immediate judicialization on the part of the patient, stimulated by a contentious
legal class, without the attempt of medical re-approach before a formalized litigation.
Arbitration and its established laws fit perfectly into contractual disputes between
physician and patient, as seen. However, the consumerist code limits the method, and
the hyposufficient pole must be very aware and in agreement, showing itself to decide
to opt for the proposed judicial route. The marketing of this method becomes rigorously
necessary for a broad social understanding of its structure and its full validity
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2. Lima A. Culpa e risco. 2ª ed. São Paulo: Revista dos Tribunais; 1999.
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1. Departamento de Clínica Médica, Faculdade de Medicina, Universidade de São Paulo,
São Paulo, SP, Brazil.
2. Departamento de Direito Processual, Faculdade de Direito do Largo São Francisco,
Universidade de São Paulo, São Paulo, SP, Brazil.
Corresponding author: Mario Jorge Warde-Filho Rua Senador Cesar Lacerda Vergueiro, 418/41, Sumarezinho, São Paulo, SP, Brazil Zip
Code: 05435-010 E-mail: email@example.com
Article received: March 31, 2021.
Article accepted: December 13, 2021.
Conflicts of interest: none.
Institution: Universidade de São Paulo, Faculdade de Medicina, Hospital das Clínicas,
São Paulo, SP, Brazil.