Who is responsible for death in a public hospital: State or outsourced?

Outsourcing does not remove State responsibility. According to lawyer specialized in private law Fernando de Jesus Santana, from Wilton Gomes Advogados, the public authorities remain responsible for damages arising from the provision of health services.

"Whoever seeks a public hospital seeks care from the SUS, and not from the company contracted to perform a certain service," said Fernando de Jesus Santana.

The company can also respond. This does not mean, however, that the outsourced party is exempt from liability. If it is proven that the failure occurred during the execution of the procedure, it may also be held responsible. In practice, it is common for the State and company to be sued in the same action so that the Court can determine the participation of each one.

This understanding has already been consolidated in court. The STJ (Superior Court of Justice) has a peaceful understanding that outsourcing the execution of health services does not transfer the State's constitutional duty to respond to the citizen to the individual.

The duty of the State remains the same. Although it may delegate the execution of certain services, the public administration remains responsible for ensuring adequate service. The STJ issued decisions according to which the way in which the service is managed - whether directly by the public authorities or by an associated or contracted company - does not change this obligation.

The State does not need to be proven guilty. The Constitution provides for the so-called objective responsibility of public administration. This means that the family does not need to demonstrate that the State was at fault to request compensation.

Still, compensation depends on evidence. According to the lawyer, it is necessary to demonstrate three elements: that there was damage, that there is a relationship between the service and this damage and that the fact occurred in the context of the provision of public services. If death results from an unavoidable complication, unrelated to a failure in care, there will be no duty to compensate.

The fact that the service is outsourced does not change this logic. For Santana, the patient's bond continues to be with the SUS, regardless of who provides the health service.

It was the State that chose the company, defined the contracting conditions and remains responsible for monitoring the execution of the contract. If the service is provided in the name of the SUS, any failure in assistance does not cease to be a failure of the public service just because the execution was delegated to a third party. Fernando de Jesus Santana

The family can contact one or more people responsible. According to the expert, the action can be filed only against the State, only against the outsourced company or against both. The choice depends on the legal strategy adopted in the case.

Suing everyone usually avoids future arguments. This allows the Judiciary to identify the participation of each person involved. The lawyer emphasizes, however, that the payment of possible compensation follows different rules: while public authorities normally pay through court orders or RPVs (small value requests), private companies follow the common execution procedure.

The State can charge after the outsourced party. If ordered to compensate the family, the public authorities may file a regressive action against the company if it is proven that it acted with intent or guilt, such as negligence, recklessness, malpractice or non-compliance with protocols.

The professional can also be held responsible. In this case, however, the logic is different from that applied to the State. To hold a doctor civilly liable, it is usually necessary to demonstrate fault, such as negligence, recklessness or malpractice.

Not every bad outcome constitutes a medical error. Medicine involves risks inherent to various procedures, says Santana. Liability depends on proving that the professional acted in disagreement with the technique, protocols or care required for that case.

The case may have repercussions in other spheres. In addition to possible civil action, the doctor may respond administratively to the CRM (Regional Council of Medicine) and, depending on the circumstances, also in the criminal sphere.

The medical record is usually the main document. Exams, nursing records, administrative documents, images, witnesses and other records produced during care can also be used.

Expertise is often decisive. It is this that normally indicates whether there was a technical failure, unjustified delay, structural deficiency or other conduct capable of establishing the link between the procedure performed and the damage suffered by the patient.

The investigations follow different paths. Administrative inquiries, police inquiries and compensation actions are independent processes. Despite this, reports, statements and other evidence produced in one of these investigations can be used by the others and influence the judge's decision.