Thursday, 08 October 2020

Compensation rights in the scope of aesthetic medicine in Portugal

VolverOver the last decades, we have witnessed an increased concern and development of the beauty cult and worship, in the hope of getting the perfect image, that justifies the increasing number of aesthetic surgeries performed every day in Portugal. Despite of the significant percentage of successes, the number of cases that end up being settled in court, because somehow, the outcome was not the expected, has increased.

Belzuz Abogados, SLP – Sucursal em Portugal has acknowledge multiple cases where the civil liability for the practice of medical acts has been discussed. This month, we address this question, focusing our attention on the analysis of the aesthetic treatments.

When a person goes to a medical office or to a private practice to rectify a physical defect or to improve their looks and undergoes the prescribed treatments, as a general rule, the case law frames this relation as a service provision agreement entered between the parties. This agreement is defined as “an agreement where one of the parties undertakes to provide their counterparty with a given outcome, from their intellectual or manual labour, with or without retribution”, even if, in certain situations, we cannot reject the competition or even the exclusive application of the extracontractual civil liability institute.

Therefore, the medical civil liability that results in the obligation to compensate has to meet four preconditions: (I) contract breach or faulty compliance, (ii) fault, (iii) the existence of damage, and (iv) causality, i.e. that such damage arises from contract breach.

In conceptual terms, the civil liability for malpractice is simple, although our experience reveals that its application to concrete cases is often more complex and delicate, given the specifications of this matter.

There are uncertainties immediately raised concerning the nature of the contractual obligations undertaken by the physician, discussing whether the physician’s obligations are obligations of mean or of results / outcome. Although this is a question that shall be analysed on a case-to-case basis and according to the specific circumstances of each case, the case law has set forth some guidelines in this regard.

In the scope of medicine that is oriented to restore health, the above outcome is not the cure of the patient’s pathology, but the obligation to provide every proper care possible to obtain it, while complying with all rules of science in a skilful, diligent, and careful way, i.e. an obligation that concerns the means.

Within the aesthetic medicine, in general, the case law sets forth that the obligation undertaken by the physician is still an obligation that concerns the means, because the physician cannot undertake to achieve an aesthetic improvement, bearing in mind that they cannot control all factors that lead to that outcome. In this case however, the truth is that the outcome is much more significant.

In fact, in the field of aesthetics where “only the outcome matters”, the obligation that concerns the means has become much more demanding and almost seen as an obligation that concerns the outcome “where every physician, when complying with their legal and ethical rights and while aware of the difficulties of every surgery, should only use the means that are adequate to that specific situation and should meet their obligation when, after informing the patient about the risks associated to the surgery, they diligently use all their knowledge and techniques specific to their speciality”.

Thus, if the intended result was not reached or if the treatment resulted in adverse unwanted effects, but the physician complied with all the rules of his legis artis, using all his knowledge and diligence when selecting and administering treatment and executing all acts destined to achieve the desired outcome and, in addition, has also informed the patient about the risks and damages that could arise from their conducting this medical act, then there is no medical malpractice and, consequently, no obligation of returning the amount paid for the treatment or paying a compensation for damage that arose from the treatment.

In conclusion, the contractual liability for a medical act, requires that the contract is breached or there is a faulty compliance that generates damage. The aggrieved party is then exempted from the burden of proving the fault, that is presumed in the general legal terms, being in the physicians’ sphere to override the presumption to be released from the obligation to compensate.

A Belzuz Abogados SLP – Sucursal em Portugal has more than a decade of experience in providing legal services in these matters, ensuring the legal assistance of physicians and patients in court, whenever the amicable settlement is not an option.

 Catarina Duarte Catarina Duarte 

Litigation and Arbitration Law department | Portugal

 

Belzuz Abogados SLP

This publication contains general information not constitute a professional opinion or legal advice. © Belzuz SLP, all rights are reserved. Exploitation, reproduction, distribution, public communication and transformation all or part of this work, without written permission is prohibited Belzuz, SLP.

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