Judge denies compensation after expert does not determine negligence

In order to characterize civil liability and obtain compensation for any damages incurred, an unlawful act is necessary, as well as the cumulative occurrence of three assumptions: behavior, activity and causation.

Based on this understanding, Judge Luiz Gustavo de Oliveira Martins Pereira, of the 8th Civil Court of Guarulhos, dismissed the consumer’s claim for compensation against health plan operator Unimed and Jarrah.

In the lawsuit, the plaintiff asserts that he underwent surgery for a hiatal hernia and gastroesophageal reflux disease and that symptoms returned a few months after the procedure. When looking for a doctor, he was informed that the stitches had ruptured and that he would have to undergo a new operation.

The consumer underwent new surgery by placing a polypropylene mesh, but felt pain again later. After an endoscopy, he found that the mesh had been rejected by his body. He broke his contract with Unimed and ended up with a gastritis, and had to go through the intensive care unit. After another surgery, the consumer found that the mesh was stuck below the liver and esophagus, which prompted him to completely remove the stomach. Therefore, he asked to condemn UNAMID to pay compensation for moral damages.

In analyzing the case, the judge noted that the expert’s report indicated that the medical conduct in treating the patient was sufficient. “The report has been technically prepared and the expert duly explained the requirements of the parties. In this context, I agree with the expert’s report, so I understand that the civil liability of the defendant was not established. Contrary to what the plaintiff claims and wrote in the decision that the procedures adopted by the specialists followed medical protocols and usual practices, and no negligence by the physician has been found.”

The judge also cited a series of similar cases from the Court of Justice in São Paulo and ruled against the compensation claim. Like a lawyer Christian Medina.

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1014978-45.2018.8.26.0224