The Provision of Medical Services in Portugal: Informed Consent and Liability (A Prestação De Serviços Médicos EM Portugal: Consentimento Esclarecido E Responsabilidade Civil)
Fernando Dias Simões
University of Macau - Faculty of Law
July 1, 2013
Dereito: Revista Xurídica da Universidade de Santiago de Compostela, Vol. 22, N. 1 (January-June 2013), pp. 1-31
Any medical intervention must necessarily be preceded by informed consent by the patient; otherwise an illicit fact may take place, generating civil and criminal liability. The main purpose of the imposition of the duty of disclosure is to allow the patient to make a conscious decision, knowing its costs, consequences and risks. The issue of medical malpractice arises with increasing acuity in the global context. In Portugal there are no specific legal rules on liability for medical malpractice. The general provisions of the Civil Code concerning civil liability, of subjective nature, are therefore applicable. This article examines some key issues in the regulation of medical malpractice: the contractual or non-contractual nature of the relationship established between physician and patient; what kind of obligation is assumed by the physician; and which party has the burden of proof of the breach of medical science rules.
Keywords: Informed consent, duty of disclosure, medical malpratice, best effort duties, burden of proof
Date posted: July 20, 2013