Professional liability and litigation in dental medicine: an analysis of the Portuguese context.

Abstract

The activity of a dentist reveals itself in numerous aspects, and its regulation is determined by the Deontological Code of the Dental Association, which contains a set of rules that dentists are obliged to follow in the exercise of their profession. The regulation of this activity goes beyond following these precepts because, in the legal relationship that is established whenever an agreement is made with a patient to carry out the treatment deemed appropriate, a series of duties and obligations begin for each party, translated into a reciprocal contract, in which the non-compliance of one of them may result in a legal claim. The objective of this study was to research most court decisions delivered in this century, in Portugal, regarding the activity of dentists when faced with patient claims and to outline a framework that better allows us to understand the regulation of this activity within the scope of the contracts established with them. This includes identifying the patients' sex, the judicial instance, the area of dentistry, the location of the injury, the type of liability, the characterization of the obligation, the basis of responsibility, the alteration of biological assets, and the outcome of the action while also not neglecting the identification of trends and jurisprudential evolutions, should they arise. A survey of judgments from the Portuguese Superior Courts was carried out, which focused on decisions from the Supreme Court of Justice, Court of Appeal of Porto, Court of Appeal of Lisbon, Court of Appeal of Coimbra, Court of Appeal of Guimarães, and Court of Appeal of Évora. To understand the judgments analyzed in this study, a brief approach to various legal concepts and institutions of interest was conducted. A summary characterization of the factual basis of the injured party's claim and the legal framework applied, as well as subsequent decisions by higher courts regarding the activity of dentists, was also elaborated. It was impossible to identify any relationship between the field of dentistry and the characterization of the obligation and the basis of responsibility, nor between the outcomes of the actions and these two parameters mentioned. This is likely due to the small sample size, which, although limited, represented all available published superior court decisions in Portugal related to the proposed topic, and because there were different decisions for similar and identical factual situations due to the various scientific and social conceptions adopted by the courts being susceptible to other interpretations.