STANDARDS OF PROOF IN THE CONTEXT OF THE MEDICAL CIVIL RESPONSIBILITY

• Main Authors: Clarissa Diniz Guedes, Laís Almeida de Souza Lopes
• Format: Article
• Language: English
• Published: Universidade do Estado do Rio de Janeiro 2017-08-01
• Series: Revista Eletrônica de Direito Processual
• Subjects: standards of proof; medical civil responsibility; proof; rational persuasion
• Online Access: http://www.e-publicacoes.uerj.br/index.php/redp/article/view/30024/20993

This paper discusses the standards of proof, also known as sufficiency models, in the context of the medical civil responsibility. The purpose of this study is to verify, from a doctrinal perception and from a study of cases, what would be the standard required to prove the fault in medical civil responsibility due to medical error. Rational persuasion was adopted as theoretical reference. We came to the conclusion that the patient, who is the plaintiff, shall prove the medical fault through a high standard of proof: the clear and convincing evidence. Nevertheless, if occurs a dynamic distribution of the burden of proof, the doctor shall demonstrate absence of medical fault through a low level standard of proof.