Breach of the duty of care and criminal liability of the health professional

Abstract

Introduction: legal and criminal liability of the health professionals, regardless its antiquity, at present has becoming more and more theoretical and practical relevance in which an excessive judicialization of medical activity is revealed as a mechanism for the protection of patient rights. Objective: systematization of the different theoretical positions that are currently identified around the judicialization process of medical activity and the likely causes that stimulate it. Method: a documentary study was carried out through an exhaustive bibliographic review in bibliographic search engines such as Scopus, SciELO, Google Scholar and PubMed. The argumentative and exploratory research was conducted on March 16, 2023 and of the 30 articles found concerning medical malpractice, only 11 were chosen for the study with strict selection criteria. Development: the theoretical positions on the judicialization of medical activity and the causes that stimulate it were systematized; in addition, the correct interpretation of the lex artis was presented as a mechanism of normative heterointegration of the duty of care by the medical personnel, in order to avoid excesses in the application of the criminal law in this area of professional activity. Final considerations: a much greater intervention of criminal law in the practice of medicine is not the most efficient policy to protect the life and integrity of the patient in the face up to the medical malpractice.

Keywords

• mala praxis médica
• imprudencia médica
• responsabilidad médica
• deber de cuidado
• responsabilidad penal