Characteristics of Decisions in Civil Ophthalmology Lawsuits in the Court of Justice of the State of São Paulo from 2014 to 2021

Abstract

The phenomenon of health rights judicialization is on the rise in Brazil, with ophthalmology being particularly vulnerable to malpractice lawsuits due to its involvement in surgical procedures and pathologies with potential vision loss. The objective of this study was to analyze the jurisprudence of the Appeal Court of Justice of the State of São Paulo by examining online appeal decisions from 2014 to 2021. A total of 39 cases related to medical errors in ophthalmology were found, comprising both, public (43.59%) and private (56.41%) claims, out of which 48.71% were successful for the plaintiff. The majority of legal claims were associated with surgical procedures  (46.15%), with cataract treatment being the most common (61.5%). Furthermore, misdiagnosis or treatment mismanagement (17.94%); delay in starting treatment in public services (7.69%); hospital infection by contaminated materials (2.56%); pterygium treatment (5.12%); and refractory surgery (7.69%) were also found in the sample. Considering access, 50% of the actions were filed by women, and 97.44% received the benefit of free justice. In most cases, expert witnesses were necessary for resolution (84.61%), with 27.27% of them being ophthalmology specialists registered with the São Paulo Council of Medicine. When loss of vision was confirmed in favor of the plaintiff, the verdicts often awarded approximately 60 thousand Reais for moral and aesthetic damages. Property damage was only awarded in three cases, and no pension was granted, even in cases where individuals lost their eyesight and jobs. A significant number of lawsuits dealt with gross errors in cataract surgeries performed in mass cataract campaigns. The findings align with the national and international literature, highlighting a higher frequency of litigation related to cataract surgeries. However, there is still ambiguity among claimants in public interest litigation regarding the appropriate parties to be held liable, especially in cases involving public-private partnerships. Some lawsuits include legal entities that are not related to the process and are in the wrong sphere, that is, in the public rather than the private sphere. While the concession of free justice facilitates access to the judiciary, it was observed that initial claims were often confusing, and the requested awards were inconsistent with tribunal parameters. As a result, compared to other countries, the granted awards are still modest. To ensure a fair jurisdiction, clarity in the narrative of facts and damages is crucial from the outset.