The theory of Risk liability situations two encarta to be verified and properly educated.
In the first, the civil liability may be recognised, regardless of fault, in the cases specified by law.
On Monday, the civil liability may be recognised, regardless of fault, when the activity usually developed by the author of the damage involves, by its nature, risk for the rights of others.
For the application of the theory of Presumed Fault, must be observed if the activity by its nature involves risk and danger, in such a way that, if, is known to be non-hazardous or not imply risks for the rights of others, will be applied to accountability, which dispenses with the subjective evidence of guilt.
It must be remembered the theory of Risk Created, taught by Caio Mario Sergio Cavalieri Filho: risk created is one that, by reason of their activity or profession, creates a danger, is subject to compensation for the damage they cause, unless there are adopted all measures appropriate to avoid it.
In this measure, rejects that, hospital activity does not represent risks to collective or particular since, are represented by medical professionals that must addressed first to employ all necessary due diligence through its technical and scientific knowledge, observing ethical determinations yet.
The Diapason retro alluded Coupe in the medical ethics code which provides:
Art. 2º. The target of all the medical attention is the health of the human being, to the benefit of which must act with the utmost zeal and the best of their professional competence.
Accommodate diverse thesis is impose on the medical professional and therefore health institutions, the obligation of infallibility, we cannot accept, because not even exist at the present time, preoperative examination that somehow can assess the degree of intolerance of the patient. Technical measures and zeal, of course, represent all the necessary actions and known to reach the expected results, in particular the application of knowledge and technology for the provision of medical care.
Therefore, descabe any pretension to apply the theory of ' Risk Created in medical-hospital activity, since his own theory of Risk preleciona the exclusion of responsibility when if there is adopted all measures relevant to reputable avoid the damage.
Author: Gustavo Spirandelli
Bibliography:
Medical Law. France. Genival Veloso. Ed. Forense. 10ª Ed.