The (un)protection of personality rights pregnant person in view of a result false positive to HIV in the Brazilian health services

an analyse of the jurisprudence

Abstract

https://doi.org/10.1590/2179-8966/2023/66691i

The study seeks to evaluate the jurisprudence of the main courts of justice in Brazil on civil liability in health by false positive diagnosis in rapid tests of human immunodeficiency virus (known by the acronym HIV) in the process of parturition and the consequent application of the drugs and procedures necessary to avoid vertical transmission. The problem that guides the study can be summarized in the following questions: to what extent can the false positive result in rapid HIV tests at the time of delivery and the application of the protocol of vertical retroviral transmission on this occasion generate civil liability? Does the consequent application of clinical protocols of retroviral non-transmission constitute a hypothesis of medical error or does it represent a situation of obstetric violence? Based on the data collected from a set of judgments on the subject, it is possible to affirm that the false hiv positive result significantly impacts the experience of the parturient due to the occurrence of medical error and/or obstetric violence and consequently the violation of her reproductive rights. The general objective of the text is to evaluate how the retroviral HIV protocol with false positive result impacts the reproductive rights of the parturient. The specific objectives of the text, which are reflected in its structure in three sections, are: a) to evaluate, from the study already carried out in the scope of law, whether the false positive result of HIV affects the personality rights of the parturient and whether it is capable of generating civil liability of the health professional; b) investigate, through the judgments analyzed, how the medical, hospital or laboratory error is configured in the results of false positive and obstetric violence related to HIV, in addition to the analysis of the quantum indemnity arbitrated for the hypotheses of origin; c) to analyze the results obtained through the jurisprudence raised how the incidence of civil liability is given to those involved in false HIV-positive testing. The research method was the hypothetical-deductive, through the use of bibliographic and documentary research technique.

Key-words: Personality rights; Medical error; Civil responsability; Rapid HIV tests; Obstetric violence.