Does implicit healthcare rationing impose an unfair legal burden on doctors? A study of Portuguese jurisprudence

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Publication Details

Author list: Costa ED, Pinho M
Publisher: SAGE Publications (UK and US)
Publication year: 2020
Journal: Medical Law International (0968-5332)
Start page: 1
End page: 27
Number of pages: 27
ISSN: 0968-5332
Languages: English-Great Britain (EN-GB)


Healthcare rationing is inevitable, never more so than during the COVID-19 pandemic. In Portugal, rationing is largely implicit and relies too much on bedside decisions, made in stressful circumstances, involving ethical dilemmas and being prone to error. This study uses a qualitative approach by exploring the public records of Portuguese courts for malpractice suits between the years of 2008 and 2019 to ascertain whether the damage suffered by patients in these cases could in any part be attributed to a lack of resources. During this research, we found that a large number of lawsuits against doctors and hospitals might have in fact been the unfortunate result of the constraints of implicit prioritization. We concluded that lawyers and judges must be made aware of the impact of implicit rationing decisions on healthcare professionals, who are judged against a professional standard and an inverse onus rule that places on them a heavy burden of proof.


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Last updated on 2020-16-06 at 16:13