Medical civil liability in Mozambican law: A legal and technical analysis of informed consent in surgical procedures

Abstract

The theme of this article is “Civil Liability for Medical for Medical Error in Mozambican Law: The Role of Informed Consent in Surgical Interventions”. The discussion is based on the provisions of Article 493 of the Civil Code (CC), which establishes the obligation to make reparation for damages caused to third parties in the exercise of a dangerous activity, either by its nature or by the means employed, unless it is proven that all the circumstances were taken to avoid the damage. In this context, the question arises: to what extent is the State civilly liable for damage resulting from surgical operations performed by doctors, considering free and informed consent? Methodologically, the research is based on a bibliographical and documentary survey. The results indicate that signing the informed consent form does not exempt the doctor from answering for the damage caused to the patient. Whenever surgical procedures before, during or after surgery, it is legitimate for the patient to surgery, it is legitimate for the patient or their relatives to claim the State, under the terms of Article 493(2) of the Civil Code. However, proving medical negligence is a challenge, as the patient’s relatives, in addition to not taking part in the surgical procedure, lack the technical knowledge to assess any faults. Furthermore, the article in question excludes liability when it is proven that efforts were made to avoid the damage. damage. In view of this the integration of auxiliary sciences into law is suggested in order to mitigate the difficulties associated with the burden of proof, especially in cases where negligence resulted in the patient’s death.