The quantification of compensatory damages in the absence of free consent of the patient

Abstract

Along with the duty to treat the patient and act according to the leges artis, the physician must obtain his free and informed consent, which is a process of communication between both (information on diagnosis, prognosis, alternatives, risks and benefits of
treatment), resulting in a patient's intelligent decision about medical intervention in his or her own body. In medical civil liability, the fixing of compensation by the absence of free and informed consent is an incipient operation of difficulties, because the damage is not caused by bad medical practice, but by the absence of
consent. The moral damage generated by depriving the patient of his capacity for selfdetermination is indemnified. Therefore, the present study aims to present some criteria and steps to be observed in assessing the harm due to the absence of free and informed consent of the patient, through national and foreign doctrinal and jurisprudential analysis.