The physician's criminal liability in cases of aesthetic beautifying surgery: about normative criteria for imputation

• Grant number: 21/04306-3
• Support Opportunities: Scholarships in Brazil - Master
• Start date: August 01, 2022
• End date: March 31, 2023
• Field of knowledge: Applied Social Sciences - Law - Public Law
• Principal Investigator: Fernando Andrade Fernandes
• Grantee: Mariana de Arco e Flexa Nogueira
• Host Institution: Faculdade de Ciências Humanas e Sociais (FCHS). Universidade Estadual Paulista (UNESP). Campus de Franca. Franca , SP, Brazil

Abstract

The project aims to understand how the configuration of a given society, in time and space, has repercussions in the scope of Criminal Law, configuring a path of double influence. Brazil is the country that most performs beautifying aesthetic procedures in the world, and, with the influence of the economic, consumer and technological society, as well as due to the increase in the use of social networks, in which such procedures are advertised, it grows the search for medical-surgical interventions. It happens that the way in which certain aesthetic surgeries have been taking place is in disagreement with the official safety standards and the physician's duties, which ends up going beyond the scope of a risk until then allowed, that is, exercising the activity of medicine, as long as it is within the regulatory limits and extra-penal rules in force, which may attract legal-criminal intervention depending on the configured medical error situation. In this way, using the deductive method and the methodological procedure of bibliographic and documentary research and case analysis, the scientific investigation will seek, through a qualitative approach, to analyze the feasibility of attributing criminal liability to the plastic surgeon in case of of crimes resulting from beautifying aesthetic procedures. To this end, the legal-normative assumptions of the Objective Imputation Theory will be analyzed, especially regarding the risk cut, linked to the failure to fulfill the doctor's social role and the failure to observe the bundle of duties and obligations to which he is linked, as well as the actions at the victim's own risk, relating to their own sphere of competence and organization, analyzing the validity of the offended patient's consent, an institute that can be analyzed in terms of type or illegality.