A responsabilidade civil extracontratual do estado nos casos de violência obstétrica ocorridos no serviço público de saúde: um check up jurisprudencial

Abstract

This monography presents as main theme the State's extracontractual civil responsibility in cases of obstetric violence practiced in the public health service, in order to give a greater visibility to the subject in the academic community, from the perspective of the humanization of the health service as a state duty. In order to elucidate the ideas of this research, a brief analysis is initially made of what constitutes this type of institutional violence, with emphasis on the importance of recognizing the State's duty to ensure a childbirth and a humanized birth, in accordance with the principle of dignity of the human person and the fundamental social right to women's health, safeguarded in the Brazilian Federal Constitution, and two bills submitted by the National Congress and the City Council on the subject are presented. As a result, general notions regarding non-contractual civil liability of the State are observed, with the evolution of its theories in the legal system of the country, to its presuppositions, with a focus after its application in the field of public health. Subsequently, they are tried by the Court of Justice of Rio Grande do Norte, which expresses the Court's understanding of the matter, in order to demonstrate how the state entity has been held responsible in such cases, and how the treatment has been given of obstetric violence by the Judiciary in general. The purpose, in the end, is to defend the State's responsibility for the damages resulting from this kind of inhuman and cruel public service with the woman's body, in view of the administrative risk theory adopted by the Brazilian legal system, given the absence of formal recognition of obstetric violence, which entails difficulties in considering it as a source of moral, patrimonial and aesthetic damages. The methodology used in this study is based on bibliographical and documentary research. The approach is eminently qualitative, considering the purpose of carrying out a juridical and jurisprudential analysis, in an explicative and exploratory, about the problems developed.