Renato de Assis Pinheiro
http://lattes.cnpq.br/4748167186526982
ABSTRACT
Throughout the last decade, social networking has revolutionized communications in all societies, causing great impact on personal and particularly professional relationships, mainly through democratization of advertising and increase of competition in all market sectors. The phenomenon of beauty worship is another crucial event observed in our study, since it has lead thousands of people in the world to pursue the beauty standards (often quite high ones) imposed by society. In addition to these two trends, certain structural problems in our country – which we will address further on – have caused a large number of doctors to look for their own space in the private sector, many of them running their own businesses in the main capitals of Brazil and facing enormous competition among fellow physicians and other professionals of health. The above-mentioned shift in the market has negatively impacted the doctor-patient relationship (DPR) has gone into a deep crisis, especially in elective treatments, and particularly the aesthetic ones. This crisis has elevated the commodification of medicine into unforeseen levels, worsening the patient experience and aggravating the judicialization of medicine. In this study, we assess the cause-and-effect association between the mentioned phenomena and distortions identified in applying the civil responsibility rules. We examine data pertaining to the judicialization of medicine in Brazil, inspecting legal decisions and their ground rules, expressly the convictions based upon medical advertising on social networks. Medical advertising plays a central
role in this picture, replicating in Brazilian courts of law and causing concern to the entire medical class, namely the increasing volume of legal decisions in which civil responsibility criteria break away from the traditional standards. There are cases in which the obligation of means was replaced by an obligation of result toward patients, and cases in which the subjective responsibility became objective. In this sense, even simple surgical misfortunes and unavoidable adverse events can be attributed to the doctor. A lot of legal decisions are motivated by issues such as information negligence, consent bias, uncertain result promise, or even the promotion of misinformation through medical advertising on social media. The aim of medical advertising must be the information, and patient attraction a sheer consequence. When advertising deviates from its original concept, it inevitably narrows the line between a DPR and an ordinary customer relationship (i.e., purely contractual). As a result, the judiciary alters the way doctors respond to the law, causing irreversible damage to the medical rights in general. It is crucial that the government and the civil society, mainly the medical authorities and the Boards of Medicine, regulate and properly monitor the practice of medical advertising on social networks, imposing the necessary limits to warrant patient and doctors’ rights.
Keywords: Medical Advertising. Social Networks. Civic Responsibility. Obligation of Result.
1. INTRODUCTION
Since its uprising around the end of the last century, social media have altered the way people connect to each other, becoming the most important mean of communication among societies across the world. The time spent on social media has increased by 60% during the last seven years, according to a Global Web Index1 research conducted in 2019. Brazilians take up the second place in a world ranking of time spent on social media: about 225 minutes a day.
That way, social media have reached the status of the main disruptive innovation2 that happened during the fourth industrial revolution3, which was characterized by universalizing the access to technology. Such rupture wasn’t limited to personal relationships, but especially affected business-to-consumer (B2C) transactions. One of its significant impacts was the crash of advertising monopoly, democratizing it to small businesses and increasing competition in virtually all economic sectors. The customer, who was then treated as a limitless resource, has become a highly desired asset, mostly in the modern environment of Digital Health4.
Concomitantly, Brazil has observed a great expansion on the private health system, allowing many doctors to opt out of working for the chaotic public health system, seeking for better working conditions and salaries. According to a recent survey carried out by the Brazilian Medical Association – AMB5, only 12.1% of the young doctors interviewed intended to work in the public health system at the end of their medical residence. In the private sector, many doctors decided to start their own companies to provide private elective treatments, especially the aesthetic ones, due to a rising relevance of the beauty industry in the whole world. This movement triggered a huge escalation in competition, causing multiple consequences.
At the same time, there was vertiginous growing in the number of medical schools in Brazil. Today, there are 389 universities offering Medicine, and 167 of them (accounting for 42.9%) were created only in the last 10 years. In a decade, Brazil produced more medical schools than China (164), and slightly fewer than the USA (196). This increase was a result of an expansion policy aimed at allocating and keeping doctors in underserved areas. However, as recently noticed by AMB6, only 20% of graduated doctors coming from these schools have registered in their local CRM7, representing an intense migration to the main capitals of the country, where there are better working circumstances, but no need for more doctors.
Another government measure to solve the lack of doctors in the underserved regions was the controversial “More Doctors” program, implemented in 2013. Nonetheless, according to a survey done by the Federal Board of Medicine (CFM)8 in 2018, the majority of the 8,233 Cuban doctors who came to work in Brazil through the program settled on the coast, next to the main capitals. São Paulo, the most developed state in the country, already accounted for almost 30% of Brazilian doctors, and still received more Cuban doctors than any other state.
It is also worth noting the intense privatization process of medical education that occurred in Brazil. A recent study indicated that 80% of the medical school vacancies are offered in private schools, following a worldwide trend as shown by PROVMED 20239:
In Asia, eliminating regulatory restrictions caused the private medical education to grow. India has 579 medical schools, where more than 52,000 new doctors graduate every year. As in India, in Bangladesh (63%), Japan (58%), Nepal (77%), Pakistan (56%), South Korea (76%), and Taiwan (73%), more than half of medical schools are private. In the Middle East, Yemen, Bahrain, and Qatar have completely privatized their medical education. In the USA, between 2002 and 2016, the number of students enrolled in the first year of medical schools increased by 45% (from 19,456 to 28,283) and 33 new schools were founded.10
However, at least in Brazil, the quality of teaching went the opposite way, perhaps as a consequence of the sector privatization. According to CFM, more than 90% of new teaching institutions are located in cities with insufficient structure for the courses (teaching hospitals, sufficient hospital beds and professionals, etc.) resulting in a low teaching quality and the upbringing of unprepared professionals. Because of that, and adding to the lack of medical residence spots, only 62.5% of Brazilian habilitated doctors have a degree in one of the 55 medical expertises approved by CFM.
To improve the education quality, in 2018 the government determined that no new medical courses could be created for 5 years, as seen in Japan (a 30-year break in 1991) and the USA (shutting down of more than half of medical schools). Yet no qualitative change was observed at the end of the period, in 2022. On the other hand, there are now 225 new courses undergoing approval, which may represent a 50% increase on the total number of available spots.
Nowadays, there are over 564 thousand doctors in Brazil, about 2.65 per thousand inhabitants, as stated by CFM11. Every year around 42 thousand admission spots are offered in medical schools, a figure 120% higher than 10 years ago. At this rate, Brazil may soon become the country with the most doctors per person in the world.
Although there are enough doctors to meet the needs of the entire Brazilian population, the national scenario if extreme inequality in distribution, establishment, and access to the professionals. Around 50% of all medical doctors in Brazil are registered in only three of the 27 states (SP, MG and RJ), where better work opportunities can be found. The same goes for aesthetic medicine: approximately one third of all plastic surgeons in the country are in Sao Paulo, and 60.4% in the Southeast region. We therefore experience a brutal paradox: whereas the most underserved areas witness a shortage of medical doctors, the great urban areas bare an environment of huge competition.
Thus, as seen in this introduction, there was a notable transformation in the medical services market during the last decade, as well as both the doctors and patients’ profile. The doctor-patient relationship has shifted from Hippocratic standards and entered a crisis, due to the unrivalled expectations from the different parts. Among some remarkable and problematic changes, we can highlight the ones regarding elective treatments, primarily aesthetic ones, as it will be presented.
2. THE WORSHIP OF BEAUTY
Though modern plastic surgery was developed to be restoring, primarily during World War I, the evolution of techniques and reduction of costs have caused the competence to be used more frequently for aesthetical purposes. After over a century later, we are undergoing the beauty worship era, a global social phenomenon that strongly impacts our study. On the word of the International Society of Aesthetic Plastic Surgery - ISAPS12, in 2021 there was a 19.3% increase in the number of procedures performed by plastic surgeons, reaching 12.8 million surgical procedures and 17.5 million non-surgical ones in the world. The study also points at a 33.3% rise in the total of aesthetic surgeries in the past four years, and 54.4% in non-surgical procedures (such as botulinum toxin, dermal fillers, and chemical peelings). Another study, from Australian organization Pretty Foundation13 shows that 38% of four-year-old girls claim to be dissatisfied with their own bodies, and 35% are already following a diet by the age of 5. The last census from the Brazilian Plastic Surgery Society (SBCP)14 pointed out that 6.6% of all plastic surgeries in Brazil is acted upon patients from 13 to 18 years old.
Beauty worship – such as the social media phenomenon – relates deeply to technology. Apps and filters available in any smartphone modify the facial and body aesthetics in videos and photos, presenting to the social media audience (and the user themselves) an “improved” image, modified by artificial intelligence and closer to the beauty standard imposed by society. The result is a growing feeling of rejection for self-appearance, as demonstrated by the American Academy of Facial Plastic and Reconstructive Surgery - AAFPRS15 in a 2017 study in which 55% of American plastic surgeons affirmed that their patients wished to improve their look in selfies, against 13% of the same in 2016. Those figures have certainly aggravated after the COVID-19 pandemic, when the use of technology was increased because of the social isolation. The situation in Brazil is not unlike, where a study published in the Revista Brasileira de Cirurgia Plastica16 showed that 44.73% of patients decided to have a plastic surgery owing to social media influence.
With more and more people rejecting their own image, the incidence of body dysmorphic disorder (BDD)17 peaked around the whole world. According to the above mentioned study18, the disorder was identified in at least 34.21% of plastic surgery patients in Brazil.
All these impacts have turned the Brazilian beauty market into one of the hottest markets in the world, attracting labor force not only of plastic surgeons, but also of physicians from other areas of expertise and several professionals from diverse areas.
3. THE PLASTIC SURGERY MARKET IN BRAZIL
There are a little over 6,500 plastic surgeons in Brazil, about 1.15% of all 564 thousand medical doctors. It may seem like a low figure, but it is enough to place the country in second on a world ranking, just behind the USA, where there are a little more than 7 thousand. Around a third of Brazilian plastic surgeons are in São Paulo, and 60.4% in the Southeast, spawning an enormous aesthetic medicine competition in this region.
Competition becomes even greater because the CFM allows physicians to act without an expert title (a highly questionable measure), meaning that every Brazilian doctor has a free-of-regulation environment to perform plastic surgeries. The sharp increase in offer has democratized access to aesthetic treatments, reducing the costs to fit into a socially imposed beauty standard, and making the fulfillment of this desire easily accessible, even to lower social extracts, by instituting credit lines, loans and fundings.
Beauty market in Brazil is one of the hottest in the world, holding second place in the world ranking of plastic surgeries – more than 1.3 million procedures a year (8.9% of all world surgeries) following the USA (15.5%). According to the SBCP latest census, 60.3% of this total are solely aesthetic surgeries. As for the non-surgical aesthetic procedures, the estimate is of at least another 1.3 million a year. However, since these numbers refer only to registered plastic surgeons, it is possible that they represent only a portion of the real figures, because of the many doctors who perform without an expert title.
On the other hand, we must mention the work of other professionals in aesthetic medicine. Supported by their regional professional boards, they can perform both surgical and non-surgical procedures. SBCP states that the most required surgeries (blepharoplasty, otoplasty and rhinoplasty) are currently executed by dentists, biomedical scientists and even nurses. For non-surgical procedures we can also consider pharmacists, estheticians and physical therapists as competition experts.
In such a competitive environment, social networks play a major role in advertising from all those professionals. Indeed, medical doctors must acclimate to this new reality of digital communication, without abandoning the ethical standards which are inherent in medicine practices. Then again, as further exposed, this rule has not been respected by many authorities, engendering a series of negative impacts in regard to doctors’ civil responsibility.
4. DOCTOR CIVIL RESPONSIBILITY
In the early days of medicine, the prevailing rule for medical practice was called irresponsibility theory, which honored the correctness attributed to medically skilled professionals. In order to justify the theory applicability, it was also considered that fear of medical responsibility would cause a defensive behavior towards the patient. Another aspects of consideration were the risk of medical science inaction due to professional concern; and the difficulty of proving a doctor’s innocence in case of an accusation.
With the advancement of society and development of patient rights, this theory was replaced with the subjective responsibility, according to which the doctor is responsible in case of a voluntary (active or omissive) and illicit conduct (violating a contractual or extracontractual obligation), giving cause to a patrimonial or extra-patrimonial damage, by means of guilt confirmation (negligence, imprudence or inexperience), as stated by TJMG jurisprudence:
Considering what was reported, and although the author has passed, unfortunately, for a considerable period of convalescence, there is no proof of medical malpractice, prevailing the original sentence, since the guilt of health professionals has not been proven; without proof there shall be no question of their responsibility.
(…)
Regarding the convergence of evidence as for the non-occurrence of imprudence, negligence or malpractice and in the sense that post-procedure complications resulted from patient’s previous health conditions, in addition to its own risk, there cannot be considered a causal link between the post-surgical complications and the medical service.19
Another aspect of medical civil responsibility is the responsibility of means, since the doctor is compelled to develop their activities in a prudent and diligent manner, employing all possible and necessary means to obtain the best results, without linking this to a certified achievement (the so-called obligation of result), as stated by the doctrine:
The obligation of means is one in which the debtor must only use normal prudence and diligence in providing a determined service to achieve a result, without the obligation to warrant it. It is inferred from this that their performance does not consist of an assured result, but only in a prudent and diligent activity for the benefit of the creditor. The content is the debtor's activity itself, that is, the intended means to produce the desired scope, insofar that non-execution of the obligation is characterized by the debtor’s omission to take certain precautions, without considering the final result.20
Obligation of result should not even be considered in medical activity, given it is completely incompatible with the subjective responsibility that rules professional actions. Furthermore, achieving a result in any medical activity depends on several factors aside from of the professional’s actions, especially in plastic surgeries, in which the patient’s own behavior during post-surgery can interfere with the results.
In Brazil, though, cosmetic plastic surgery has been sometimes considered as an obligation of result, as seen in a controversial statement from the Supreme Court (STJ):
This court’s jurisprudence understands that “aesthetic surgery is an obligation of result, since the hired professional commits to delivering a particular result, which constitutes the core of the obligation, otherwise it is not executed.21
When applying the obligation of result theory, there is presumption of the doctor’s responsibility, in which they must prove their innocence, as stated below from what the STJ understands:
According to the jurisprudence, plastic surgery has the nature of compulsory result, which attracts the doctor's presumption of responsibility from the doctor, who must prove any exclusion of responsibility for the damage caused to the patient.22
Given this ruling by the Supreme Court, the understanding was automatically spread to other courts of law, without a careful analysis of the concrete case, to verify its applicability to the STJ rule. Therefore, there is a growing misunderstanding in Brazil that denies the inherent unpredictability of medical activity. It cannot be sustained, however, the inconsistent argument that surgical interventions are merely aesthetical, because health is not limited to physical well-being, comprising social and psychological aspects as well, a reason why even aesthetic procedures can improve health conditions, particularly mental health.
Another issue to be considered is the distribution of the burden of proof, stated as a general rule by the Brazilian law, according to which the author (in this case, the patient) is the one responsible for proving the constituting facts of their rights. Alternatively, the defendant (the doctor) must prove the modifying, extinctive and deterrent facts of the author’s rights. Moreover, Brazilian procedural law encloses exceptional possibilities for inversion or redistribution of the burden, in cases where producing the evidence for either part shows to be challenging or impossible.
Comprehending the rules of medical civil responsibility is crucial to handle the impacts derived from the judicialization of medicine. This problem, as exposed further ahead, raises concern each coming year for the medical community.
4.1 THE JUDICIALIZATION OF MEDICINE
Overall, where there are doctors and patients, there is frustration, usually caused by unmet expectations. The disappointment puts the doctor-patient relationship into a crisis that, if not properly cared about, results in a lawsuit. Considering the aspects mentioned in this study, we can regard the increase in judicialization an unavoidable result. According to a National Board of Justice report (CNJ)23, in eight years that has been a recorded augment of 198% in health-related lawsuits.
We must ponder, though, that health judicialization is also a strong reflection of the inefficiency present in services offered by the health sector. In accordance with the Brazilian patient health institute (IBSP)24, every year 10% of patients go through adverse situations, and 220 thousand are deceased. AT least 66.7% of these cases are considered avoidable adverse events, exposing how serious the matter is. The situation is even more alarming in the USA, where 400 thousand casualties take place owing to adverse events.
On the word of STJ, plastic surgery is the third most demanded medical expertise in absolute numbers, following obstetrics and orthopedics. In contrast, the number of orthopedicians (about 18 thousand) is about three times the number of plastic surgeons, and the number of obstetricians is five times higher (circa 34 thousand), demonstrating that, proportionally, plastic surgery is the area which concentrates the majority of lawsuits.
In this context, it is worth highlighting a growing number of doctor convictions breaking away from the traditional rules of civil responsibility. There has been a mounting volume of convictions of doctors, particularly in plastic and cosmetic surgeries in general, based solely on the patient’s dissatisfaction with the achieved results, even in face of their normal occurrence. The same is true for cases where there are irregularities or surgical complications beyond the doctor’s responsibility. And, as stated, medical advertising has proven to be a factor of influence in such distortions.
5. MEDICAL ADVERTISING ON SOCIAL NETWORKS
In short, medical advertising can be defined as a collection of communication strategies and actions, aimed at spreading knowledge according to legal and ethical standards which are inherent in medical activity. Its goal is to provide information, rather than to sell a service.
If, on one hand, there is a need to inform patients and society about scientific and technological progresses in health - including the doctors’ legitimate right to announce their competences and capabilities; on the other hand, there are ethical limits pertaining to the medical practice. In Brazil, The Federal Board of Medicine (Conselho Federal de Medicina – CFM) and the Medical Issues Disclosure Commission (Comissao de Divulgacao de Assuntos Medicos – CODAME) have edited the CFM 1974/11, a legal ruling for the matter for over 12 years, determining that professional conduct must follow the promotion and release of scientific knowledge, and must be aimed at educating the society.
For many years, most Brazilian doctors have disregarded the social networks, causing the use of such media by a few professionals the be neglected by the class entities. Hence, the networks have become an environment of total freedom, filled with malpractices, ethical infractions, and illegal acts. As a result, the CFM published a new resolution (CFM 2.126/15), regarding medical ethics on the internet and social media. The ruling explicitly bans: the posting of selfies and contents to encourage self-promotion; the posting of “before and after” photos; the use of sensationalism and disloyal competition. Valid for eight years, many now consider it outdated and lacking revisions.
Nowadays, social media is the preferred means of medical advertising in Brazil. From a SBCP survey25, 80.3% of plastic surgeons use social networks with this purpose. Although Instagram comes in third place among the most used networks in Brazil26, 60.2% of plastic surgeons use it as their main channel of medical advertising. Many doctors handle the tool appropriately, as we can read from a TJMG decision concerning plastic surgery:
If the evidence in the court case do not prove that the advertising has induced the consumer into error, there is no need to speak about false advertising. Because there is no obligation of result, and the proposed treatment has been clarified to the customer, the mismatch between the treatment result and the patient’s expectations does not denote default.27
However, the misuse of social media has become more common, which brings negative consequences to all the parties involved: patients, doctors, and the entire society, as we will expose ahead.
5.1 THE UNETHICAL MEDICAL ADVERTISING
On social media, patients can be easily induced to error, because digitally any professional can be turned into an ‘object of desire’ if the appropriate strategies and tools are employed. Hence, the patient can develop a distorted perception about the doctor’s knowledge, authority, and service quality. Mediocre professionals may convey the image of big authorities, whereas great reference experts may seem average, for not being part of this social media reality.
Abusive malpractices happen because the more advertisement follows the Medical Code of Ethics, the fewer patients it attracts. Conversely, the further it gets from being legally ethical, more patients are persuaded. For that reason, the social media ‘parallel universe’ may represent a shortcut to new market competitors, transmitting to the public a false perception of authority, and building up their own social reputation. Such effect has caused a real herd behavior in the medical use of social media. We can cite Rui Stoco for an explanation:
Publicity around this medical activity and even ostensive advertising from some clinics contrary to the Regional Boards of Medicine guidelines and many sections of the Medical Code of Ethics is massive, offering all sorts of interventions and presenting examples of achieved results, in a demonstration that what they are proposing is, in reality, a result, as it also occurs within dentistry and other cosmetic treatments.28
According to information from CREMESP29, in 2022 the medical expertise with most investigations due to problems related to medical advertising was plastic surgery (about 30% of the total). It is more and more common to observe the use of digitally manipulated photos, the minimizing of serious risks, the promotion of surgery lotteries, the use of applications for digital prediction of aesthetic results, and the promise of uncertain results.
The bad use of social media, in addition to all other aspects previously mentioned here, has aggravated the commodification of medicine, since the traditional doctor-patient relationship, one that should lead all these other interactions, has given space to a mere offer of a service, in a dehumanized way. The patient journey starts now on a social networking environment, as opposed to a regular medical appointment. Subsequently, a series of important steps come to be unnoticed, such as adequate medical records, alignment of expectations between the doctor and the patient, and in particular the duty to inform. Instead, we notice an experience filled with bad-faith and misinformation. In view of that, we can quote the following excerpt from a TJRS decision, proclaimed in 2016 in case of surgical medical treatment:
There is failure on service, both by the doctor and the clinic, for not correctly observing the duty to inform, having attracted the customer through an advertising report containing a false statement.
(...)
In this sense, there is indeed responsibility from the demanded part, for having done false advertising as a means to attract clients.30
The promises of uncertain results have become ever more frequent on social media, and they ensue as to attract patients, giving confidence to many legal rulings, as seen from a recent TJMG decision in case of a non-surgical medical treatment:
It is worth mentioning that the doctor responsibility is of means, except when there is evidence that they have expressly obligated themselves to achieve the result with the patient, as in this case.
(…)
It remains demonstrated that the appellant promised an assertive result, which was not reached in the end.31
Cases of failing the duty to inform are similarly recurrent, which causes patient consent bias. Looking at a topical ruling by the TJRS:
In this perspective, there is no way to excuse the doctor responsibility, especially because they acted in complete dissonance from their duty to inform about the surgery and the indispensable care during post-op, since the advertising, as it was written, implies that the vasectomy procedure is irreversible. Nonetheless, it is a matter of common knowledge that after a surgical procedure there is a possibility of spontaneous rechanneling of the different ducts, as highlighted in the verdict.32
In these cases, the conviction of the doctor is very likely, regardless of the treatment result, since the failure in transmitting information has removed from the patient the prerogative to consciously make a decision, leaving to the doctor the duty to pay for the damages, facing an information neglect.
With all those recent changes, the patient experience has undergone a severe transformation process, going from a Hippocratic model into dangerously approaching a mere consumption relationship. As a consequence, there are more conflicts between parties and patient frustration levels have reached unanticipated heights, making the judicialization of medicine an alarming situation.
6. MEDICAL ADVERTISING INFLUENCE ON CIVIL RESPONSIBILITY
Considering the state of affairs presented in this study, the doctor-patient relationship has been through many amendments, getting farther from the traditional standard proposed by the father of western medicine, Hippocrates. Although the doctor still has a great influence power over this relationship, we note that a lot of professionals have been acting to weaken it, operating as mere service suppliers, while patients proceed as customers (whether it is a lack of option or simply convenience).
One of the biggest impacts goes on the relationship’s nature, because it is customary for the legal system to consider it a typical consumption relationship, where medical advertising noticeably interferes, as stated by the TJSP in case of plastic surgery:
This way, the defendant, as a service provider and subject to the Consumer Protection Code, had a legal obligation to inform the patient about the medical services that would be provided, other than all surgical hindrances, beside recommending the best technique.
(…)
It then can be highlighted that the ad released by the defendant clinic, with an eminently advertising nature, making clear the obligation of result and creating customer expectation, in terms of paragraph 30 of CDC.33
When the relationship is considered a consumption relationship, a significant impact is reversing the burden of proof to favor the patient, taking place when there is likelihood in their allegations. From the excerpt below, emitted by the TJRS in a non-surgical medical procedure ruling, the measure is justified due to medical advertising:
In this case, the sentence appropriately reversed the burden of proof, that is, the defendant clinic should attest the untruthfulness of the facts alleged by the patient, amongst which, that the cosmetic treatment results were fully satisfactory and in accordance with the announced ad; or that the patient had been informed about the advantages and disadvantages of the treatment; and finally, prove that treatment was not effective due to a particular situation concerning the patient him/herself, what did not occur.
(…)
The defendant also failed in demonstrating that such required information about the advantages and disadvantages of the treatment had been delivered to the patient, or that the treatment could achieve less than 100% efficacy due to their own specific situation.34
In another ruling by the same court, the burden of proof inversion was an excuse for a completely unexpected decision, in which such reversing was used as cause to conclude the date when the prosecuting couple had sexual intercourse, making it clear that unethical medical advertising yields immeasurable to the doctors:
Given a consumer relationship, it is necessary to conclude that the patients only maintained sexual intercourse after being aware of the examination result that demonstrated the success of the medical intervention. In this sense it is also the expected outcome to the customer who paid for a medical intervention in order to avoid having kids.35
Misinformation triggered by medical advertising on social media is such a huge problem that not even the posterior correct communication and the signing of the Free and Informed Consent (IC) form are capable of unbiasing the understanding. In theses cases, the IC is considered invalid, as it can be grasped from the TJRS decision in case of surgical medical treatment:
It is unacceptable that, in order to sell the service, a 100% guarantee has been offered, which is not true, and then, when contracted, a term is signed in which the offer is no longer confirmed, speaking of a result close to zero.36
At this point we have come to notice one of the most aggravating impacts in our study, although we realize that only the IC is not enough to warrant a full transmission of the information, provided that in several occasions it is done in a generically and carelessly by the doctors – as noted from the ruling below, by the TJSC:
Furthermore, the free and informed consent from the author was not proven. Attached with a term of responsibility related to only one of the procedures performed, which is generic (blanket
consent), unable to configure adequate risk information. Sustained the duty to compensate for material damage.37
Even though medicine is not an exact science, thus subject to uncontrollable situations and particularities from each case (as in iatrogenic occurrences), we note that in many instances the obligation of means is disregarded, giving place to the obligation of results, as mentioned in the previous section. In theses cases, the doctor becomes presumed of guilt, unless they can sustain a plea of responsibility, as the extract from a ruling by the STJ states:
From this perspective, in surgical procedures for aesthetic purposes, although the obligation is of results, there is no objective responsibility for surgery failure, but merely presumption of medical guilt, which means reversing the burden of proof, and it is up to the professional to exclude it, as to clear themselves from the contractual liability for damages caused to the patient due to the surgical procedure.38
Yet, from the same standpoint, medical advertising influence is negatively seen, since uncertain promised result cases are progressively more frequent (even if indirectly) through social media. As mentioned by Rui Stoco’s doctrine:
Ruy Rosado de Aguiar Jr. notes that the currently guideline in
France, in doctrine and jurisprudence, is inclined to admit that the
obligation to which the plastic surgeon is subjected is no different than
that of other surgeons, as they operate under the same risks.
It would, therefore, be like that of doctors in general, an obligation of means. The peculiarity would be due to the increase in information duties, which must be exhaustive; and consent, clearly expressed, clarified, determined. (...). It remains extremely difficult to support contrary theses
and affirm that the obligation of the plastic surgeon in cosmetology and beautification is just of means.
There is no way to support this understanding. For one, because of the
promise of results that is inherent in this type of intervention (skin treatment, shaving, tanning, waxing, cosmetic implants on parts of the body, combating cellulite, liposuction,
beautifying plastic surgeries of all kinds, etc.). For two,
because the excessive advertising currently broadcast - which asserts success and excellent results of interventions of this nature, including “before and after” images – give the dimension of the
expectation that is caused and suggests a result. (...). Miguel Kfouri Neto says that “in case of aesthetic or cosmetic plastic surgery, which constitutes, as seen, an obligation of result, the responsibility for the damage must be assessed with much greater severity.39
However, unethical performance effects go beyond a simple presumption of guilt, bringing to the doctor an obligation of delivering an effective result, as promised by the medical advertisement. Such understanding growingly in Brazilian courts of law, as the decision note by TJMG:
In the obligation of results, as in the strictly aesthetic or cosmetic surgery contract, the doctor is obliged to reach a certain end, without which the obligation is not fulfilled. And, by not reaching the promised result, compensation for proven material damages is required, with the moral damages resulting from the frustrated expectations of the promised result.40
Below is another decision in the same direction, by the TJSP:
Expectation of improved appearance. Obligation of result because patient was promised and undeniably aesthetic improvement. Consolidated jurisprudence in this regard. No proven provision of adequate information, prior to surgery.41
From these decisions, we can note a strong offense to the doctor’s subjective responsibility. In certain cases, the legal ruling has made it equivalent to an objective responsibility, ignoring the need to prove a defendant guilty. In our research, we have found convictions issued because of complications not involving doctor culpability but related to the informational neglect observed in medical advertising. That way, we show a citation from a TJMG declaration, concerning a case in which the patient omitted her medical record from the doctors, and a pre-existing condition caused complications:
In the absence of imprudence, negligence or malpractice from the health professionals, there is no need to mention a medical error, especially if the observed complications stem from pre-existing diseases or the inherent risk in the necessary medical procedure.
(…)
Information provided by the doctor must be clear and precise, therefore it is not sufficient to generically inform the occasional implications of the treatment, which would compromise the patient informed consent, considering the duty to inform inefficient. Without confirmation of the informed consent, remains the illegal act, as well as the obligation to moral damage compensation. (STJ – Resp 1848862).42
In even more controversial cases, there was not any damage to the patient, but the doctor was sentenced to pay compensation because of bias in the medical adverts. In the following example, ruled by the TJMG in a plastic surgery case, the doctor was sentenced to pay compensation for the patient’s dissatisfaction with their scar, without any ascertained damage, but considering the unethical medical advertising:
The core of appealing controversies involves attracting clients through the use of advertising with dubious information.
(...)
The fact is that the author asserts that she suffered severe aesthetic damage, as the scar left by the surgery is asymmetrical.
(...)
Therefore, the appeal thesis espoused by all the applicants is unsuccessful, in which they should be faced with an obligation of means. They must also respond for failure in not achieving the aesthetic result desired by the applied procedure, even if performance within the appropriate technique has been verified.43
To make it worse, we have found cases in which the treatment developed normally and properly, and even the advertised promised result was accomplished; in such cases the conviction was handed for failure in achieving the patient’s subjective expectation, that because of the medical advertisement, was higher than the effectively produced result from treatment, as seen on the following excerpt by the STJ decision:
Failure to comply to the duty to inform already characterizes the disobedience of contract by the doctor. In addition, it is necessary to presume that the result expected by the patient and promised by the doctor is the one stated by the initial petition, one that was visibly not achieved, as observed from the photographs.
(…)
According to the jurisprudence, if the result is not achieved, the plastic surgeon is presumed guilty. In this specific case, the attribution of guilt to the appellant cannot be accepted for the inefficient result of the surgery, due to weight gain and for not having strengthened their muscles in the gym, since the appealed doctor did not inform, clearly and definitively, that this should have been the way to proceed. Considering the frustration caused to the patient, who performed 3 aesthetic procedures without obtaining the expected results, in addition to the doctor’s fault for failing his duty to inform, the amount of BRL 40,000.00 is adequate to make up for the caused damage, making up for an educational measure as well.44
Finally, we have identified legal precedents where the professional was not even responsible for the medical action, but still got condemned because of the advertisement, as judged by the TJRJ in plastic surgery:
From the ad flyer, we can see that the defendant doctors worked in commercial partnership, offering to customers the protection of the two of them being present during the surgical procedure.
Both, therefore, must respond to the consequences of such intervention.45
Therefore, we note that the content of medical advertising on social media comprises the medical accounts and ties the doctor in several manners, causing unsolvable biases. Within the examined rulings, we observe a remarkable change in the traditional rules of medical civil responsibility, resulting particularly from the unethical advertisement practiced on social media.
7. THE NEW CFM DECISION (2.336/2023)
The Federal Board of Medicine (CFM) published a new ruling on September 13, 2023. This document updates all the rules concerning medical advertising and establishes criteria that are more suitable for medical activity in the 21st century. The first aspect to call attention for is a more permissive appeal, contrasting to previous regulations which only prohibited conduct, making leniency merely residual.
The new decision is innovative as it embraces literal concepts of advertisement, openly acknowledging patient prospecting as a goal, and even recognizing them as “clients”. However, it is also conservative when it restates medical advertising’s principle to inform, and the need to respect traditional ethics. Moreover, it includes objective standards for terms such as sensationalism and disloyal competition, diminishing subjectivity and reducing the possibility of twisting interpretations.
The rule authorizes selfies with patients, the publishing of appointments’ fees and payment options, overruling prohibitions that made no sense. On the other hand, it now allows for doctors to appear in promotional and sales campaigns, and even taking on influencers, which could aggravate the problems described earlier.
A significant change was the permission to use patient’s image, without the traditional (and outdated) limitation to scientific purposes. Image usage is authorized as long as there is clear information about treatment directions and contraindications, and factors that can influence results.
The main premise to image usage remains to be its educational and instructive intents, and it is mandatory to get the patient’s expressed approval, as well as to comply with their privacy and anonymousness. And here lies the contradiction in the new resolution: allowing all these measures through keeping the patient anonymous. It becomes even more incongruous if we consider the (now permitted) possibility of shared content on social media, which is nonsensical if done anonymously. In addition, sharing permission comes alongside an important reservation: the ethical attribute of shared content must always be analyzed as if published by the doctors themselves.
The new ruling was bold to allow the use of controversial before/after pictures, if certain requirements are met: keeping an ethical and informative nature, respecting all legal ethical parameters, and limiting content to the doctor’s expertise (with identified credentials). Posts must bring vast amounts of information about recommendations, satisfactory and unsatisfactory development, as of possible complications originated from treatment. When applicable, they should demonstrate diverse treatment perspectives to different biotypes and age groups, in addition to immediate, intermediate, and late evolution standpoints.
As they announced the new guidelines, CFM demonstrated great concern with medical conduct facing the given freedom, suggesting caution to avoid expanding reverence to an obligation of results. In this sense, misleading advertisements were explicitly prohibited, and although many have seen it as an overstated measure, there are studies to show it is an emergent reality.
In short, the CFM decision was competent in accommodating the rules to medical advertising to a contemporary context, but it also has great potential to cause the worsening of all problems exposed in this study. Maintenance of such rule by the CFM will likely depend on doctor’s performance under the appliance of the new regulations, which will take effect 180 days after publication.
8. CONCLUSION
The goal of medical advertising should be to inform, not sell. Patient attraction should not be a target, but the consequence of an ethical and loyal marketing. The effect of an unethical medical advertising, especially through social media, had been cause to various problems, including an ongoing crisis, between doctors and patients.
Legal authorities, represented by the judiciary branch, have become aware of those changes and their potential damage to patients, and started acting on litigations in a different way, diverse from the traditional fashion that would previously guide doctor civil responsibility actions.
As found in our study, such transformations pose a great risk for all medical doctors, since they convey a new understanding that, in the future, could be applied as a universal rule to all doctors, and not only the ones who unethically use medical advertising.
Acting within the ethical rules will not turn the doctor into a celebrity or lure thousands of patients to him. Then again, is that the role of a medical doctor in our society? Is it worth paying the high costs of an improper action? Is this the legacy doctors would like to build up in the course of their careers? It is important to think this through, because while social media have the power to produce celebrities, they can also ruthlessly destroy their careers.
On the other hand, an ethical activity will provide knowledge to society and foster a closer relationship with patients. It will value an ethical and respectful conduct, assisting the unveiling of unethical professionals. It will generate confidence and authority to the medical expertise and the professional’s acting field. Therefore, it will appeal to patients who are conscious of the possibilities and risks, properly instructed by a rich lesson shared from the professional. Patients who seek something real, not an illusion.
The solution to the problem, though, does not only involve doctors. There must be a collective action engaging the State and the civilians, mainly the medical entities and the boards of medicine, in order to regulate and monitor medical advertising in social media, imposing the necessary boundaries to assure patients’ rights. Measures that will certainly benefit doctors, by preventing the judiciary from promoting the condemned decisions mentioned in this study, avoiding damages and risks to the entire medical community.
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