CIVIL LIABILITY FOR MEDICAL MALPRACTICE DURING CHILDBIRTH: An Analysis in Light of Brazilian Civil Law

Abstract

This article analyzes civil liability for medical malpractice during childbirth in light of Brazilian Civil Law, considering the requirements of medical liability, the particularities of obstetric practice, and the evidentiary difficulties faced by the woman in labor. The research examines the physician's subjective liability, the duty of means, the distinction between medical malpractice, iatrogenesis, and adverse outcomes inherent to medical practice, as well as the liability of healthcare institutions. It also analyzes the duty to provide information, informed consent, the patient's technical vulnerability, and the relevance of expert evidence, medical records, and mechanisms for allocating the burden of proof. It is concluded that the occurrence of an adverse outcome during childbirth, by itself, does not constitute medical malpractice, as proof of negligent, imprudent, or technically incompetent conduct, damage, and causal nexus is required. It is also found that subjective liability remains compatible with medical practice, but its application must take into account the evidentiary difficulties arising from the technical imbalance between the woman in labor and healthcare professionals, in order to ensure effective compensatory protection without automatically presuming the physician's liability.