BACKGROUND: The fear of being prosecuted by their patients in relation to medical malpractice is growing among brazilian medical doctors. This condition may be avoided with preventive orientations. AIM: To analyze legal proceedings in course in the city and state of São Paulo as well as to define what could be the main cause regarding this concern and its consequences. METHODS: Thirty legal proceedings, which were in progress in the regional civil courts in the Capital and countryside of the State of São Paulo - Brazil have been analyzed. Trial court cases were selected from 1996 to 2002 related solely to digestive system surgery. The practical importance of the subject for the medical-social evolution has been addressed in the first place. The points looked for in this research were: physician/patient relationship (even during the claim); the information about medical procedures and limitations to the patient and family; the technical/legal documentation attached to the case; the professional's education and specialization. The analysis was based exclusively on the documents attached to the case record, trying to find the breach of the physician/patient relationship and the existence of informed consent. An examination of the documentation attached to the defense by the parties or court request, was also done. RESULTS: In 93,34% of the cases rupture in the physician/patient relationship occurred. Informed consent was found in only 10%. In 85% no or incomplete medical records were found. In 79%, absence of physical examination, and the same in 59% in clinical evolution, was noted. In 80% the writing was illegible. No medical identification was found in 61%. Information about previous allergies were not asked in 89% of the patients. Surgical descriptions were illegible in 80% and too brief in 47%, and all of them had no citation of the defense arguments to the malpractice accusation. Regarding medical post-graduation status, 7% had medical residency, 13% were in course of residency program, 67% had specialization certificates and 13% had a master or phD degree. CONCLUSION: Among the preventive ways to avoid a civil action for damages due to medical malpractice, the main points are: good relationship between doctors and patients; the formulation of complete patient records, being legible, stamped, and signed and an informed consent. The professional's technical experience and background do not constitute a mitigating circumstance for fullfiling the action.
Medical malpractice