Top court clears Health Bureau of medical malpractice

The Court of Final Appeal (TUI) has cleared the Health Bureau (SSM) of an accusation of medical malpractice involving the case of young child that died after a series of medical interventions performed at the Conde de São Januário Hospital Center (CHCSJ).
The top court cleared the Health Bureau, noting that it was not proven that the health services made any errors in procedure or operation that led to the death of the child.
According to the court ruling number 120/2019, the case goes back to early January 2016 when the child, who was not yet 2 years old, was hospitalized to undergo surgery at the public hospital to repair a cleft palate.
After the surgery, several complications led to cardiac arrest. The patient was successfully resuscitated multiple times but ended up in a coma that lasted almost two months, until she died in early March 2016.
The parents, claiming that the death had occurred due to medical malpractice, decided to sue the SSM, calling for compensation in the amount of MOP1.5 million.
In October 2018, after an initial analysis of the case, the Administrative Court issued a decision, rejecting the claims of the parents and cleared the SSM from responsibility in the case, after which the parents appealed to the Court of Second Instance (TSI).
In the second analysis, the TSI decided that it had been proven that the medical team at CHCSJ failed to comply with the duties of care and diligence, noting particularly the errors made during the intubation of the patient (the respiratory tube had been incorrectly placed at the esophagus and not at the trachea), ruled that there was, in fact, improper conduct, and attributed responsibility to the medical team’s actions which resulted in the death.
The Court of Second Instance then requested the cancellation of the initial decision of the Administrative Court, sentencing the SSM to pay compensation of the amount of MOP1 million to the parents.
The SSM appealed this decision at the TUI, which after analyzing the case concluded that the accusation presented insufficient facts, not explaining clearly which actions were being considered as malpractice, presenting only the fact that the surgery had registered several complications which resulted in the coma and eventual death.
On the other hand, the court noted that it was the SSM, the defendant, which had come forward to offer clarification during this case, especially regarding which medical procedures had been performed the flaws or problems that were registered.
The court remarked that although there are clear indications that there were medical procedures that were performed in a deficient manner, namely concerning the intubation error, such indications were presented by the defendant, and the complainant had not presented any evidence or facts to prove that such medical procedures were done in a negligent or unlawful manner, or that the death of the patient resulted from such malpractice.
Furthermore, the TUI explained that, even if the medical procedures were proven to have been the cause of the death, no facts have been presented as to how those flaws or deficiencies can be attributable to structural failures in the operation of a particular service of the CHCSJ, or to the operations of the public hospital as a whole.
In light of such facts, the top court dismissed the claims, ruling that it is not possible to attribute guilt to the SSM, thereby upholding the original decision of the Administrative Court.