The importance of medical expert opinion in shaping the understanding of the judge: analysis of claims about medical malpractice in general surgery

Abstract

Currently, in Brazil, legal demands filed by patients against their doctors have enormously increased. Medical malpractice is defined as improper conduct, which involves a technical failure, capable of producing damage to life or harm to health of others. The lack of expertise in medicine makes the judicial authority require an expert opinion to determine the liability of those involved. The aim of this study was to assess the importance of medical expert opinion in shaping the understanding of judges in cases of alleged medical malpractice in general surgery and to evaluate the impact of medical expertise in the formation of his decision. We have studied the official forensic reports and court decisions of the year 2009 of 100 civil cases related to medical malpractice in general surgery, proposed in the state of São Paulo, in first instance. We have observed elements of the expert report and the reasons for the sentence. We have determined agreement and disagreement between the medical and legal understandings in each case. In all decisions judges have mentioned the forensic evidence exposed by the expert. In 96% of cases the forensic report influenced the decision. 80% of the sentences were unfavorable to the authors. In 84% of cases, the expert did not establish the cause-effect relationship. In 16%, elements related to medical malpractice were well qualified. The agreement took place, specifically, in 75% for the inadequate medical management and 100% when the expert considered the assistance appropriate. Thus, medical examination with expert opinion is the primary means of proof in actions that deal with medical malpractice. The results confirm the strong influence of expert opinion in the merits or otherwise of the actions. The adequate supply to the competent authority for clarification on the matter at hand, based on scientific knowledge, is responsible for the formation of the magistrate’s conviction, contributing to justice.