Célia Marina Destri dos Santos, a Rio de Janeiro attorney, has created Brazil's first legal and social advocacy group for medical malpractice victims. She is moving to win a series of cases that will open the courts and give victims new rights backed by real remedies.
The New Idea
Brazil's inadequate public hospitals and poorly trained doctors have created many malpractice victims with legitimate claims to compensation and desperate needs for representation. To fight for their legal and civil rights, Célia founded the Association for the Victims of Medical Malpractice (AVERMES) and is digging in to win a series of cases that will give these victims real relief. Célia believes that winning a number of malpractice suits will convince lawyers to take an interest in these cases and develop expertise in the field. In Brazil, lawyers can be paid through a contingent fee, a key precondition to representing poor victims. Given that this mechanism is available, Célia believes that a few successes in court will open the field. Medical malpractice often leaves people unable to work and take care of their families. It is important that they know they could be entitled to financial compensation. "No money in the world can pay for the suffering of a victim," Célia says. "However, people have to be aware of their rights." She also hopes that her efforts will indirectly improve Brazil's health care system by making doctors and hospitals accountable for their errors. "For too long, negligence plus imprudence plus incompetence have equaled impunity," Célia says. "AVERMES wants to change the equation to equal justice."
Poor educational standards and increasing numbers of medical schools produce many unqualified physicians who now work both in public hospitals and in private practice. These "doctor factories" have no libraries and few facilities to help medical students learn, even though the students pay high monthly fees. Since this fee virtually guarantees a passing grade, disinterest settles in between the professors and students. The medical schools simply produce poor doctors in abundance.
The government's disinterest, economic chaos, and instability only aggravate the problem. Government health staff are poorly paid and are not provided with adequate materials. Piece-rate compensation and overload invite carelessness. Primary care referrals add to the overload and inability to focus on the truly high-risk cases. Bribery and fraud introduce further quality risks.
The victims suffer in many ways: disability, psychological shock, economic bankruptcy. Everyone has stories. One man is in a wheelchair due to an anesthetic error, another because of a spinal tap mistake. They can no longer walk. Many now go to a public hospital in fear. Célia says, "AVERMES is not against the medical profession. We are against poor professionals."
Few people go to court because there are few lawyers who will accept a case for which they will only be paid at the end of the lawsuit. (A typical lawsuit takes an average of five years.) Nor can the victim afford a five-year fight. Thus, another problem is the general inefficiency of the judicial system, which drags out the process.
Since founding AVERMES in 1991, Célia has accepted 200 medical malpractice cases. The victim plaintiffs will only have to pay the organization if and when they win the case -- making the decision to go ahead practical.
To date, none of Célia's cases have gone to trial. She is working through the legal system to find ways to speed up the procedures. For example, she can use the simple complaint of culpable bodily harm and culpable homicide, which translates to punishment (but not prison) for the guilty doctor, but no compensation for the plaintiff. Or she can use the civil code to protect and defend the "consumer," here the victim of malpractice. Almost all of the defendants in Celia's malpractice cases are government hospitals and clinics. She hopes that the government will provide better health care as the result of AVERMES's legal actions.
AVERMES now has about a 1,000 members. All are malpractice victims or relatives of malpractice victims. It has a staff of seven voluntary lawyers who provide legal services, and it provides leaflets, lectures, and interviews on malpractice issues to hospitals, law schools, and patients.
Célia has also published manuals that describe methods of protection against medical malpractice. Patients should, for example, be certain of the procedure being performed, the potential risks, and the names of all doctors and assistants involved.
The problems of medical malpractice can be illustrated by Célia's own experiences. She has been a victim three times. As a child, she contracted an illness that doctors misdiagnosed. As a result, it went untreated, and to this day she walks with a limp. When she was fourteen, after dropping out of school to go to work to help her family, one employer refused to hire her because of this minor handicap.
When she was married and having her first child, she knew that her hip problem would make natural childbirth difficult. Tests showed that a caesarian was necessary. However, she and her husband could not afford it, and the doctor forced natural delivery. As a result of complications, the doctor had to use forceps, injuring her newborn daughter.
Years later, after going back to school at night and earning her law degree, Célia was again the victim of a doctor's error. In 1990, she had an operation to remove a cyst from her ovary, and during the procedure the doctor mistakenly cut a wrong tube. Sixteen days later, she was rushed to the hospital for emergency surgery. Doctors found two and half liters of urine in her abdominal cavity and had to remove one of her kidneys.
Célia grew up in a poor family in a poor town: Bangu, a suburb of Rio de Janeiro. She dropped out of school as a child and went to work raising her two daughters. Eventually, she went back to school and graduated from law school in 1988. She has experience in both civil and criminal law, and has been associated with legal groups that advocate ethical behavior for all professions.
Célia has always been an active member of her community, yet after losing her kidney in 1990, she decided to devote herself to malpractice cases. "Right there in the hospital bed, the idea to do something came to me, because I was revolted and indignant at having lost my left kidney because of malpractice," she says.
Her dream is one day to start a foundation that provides legal support, counseling, physical therapy, and other rehabilitation programs to malpractice victims.