Whenever any medical act is to be performed, informed consent is an essential part of its execution, as it embodies a summary of the main risks associated with carrying it out. This duty to inform applies across all medical acts, namely those performed in the context of dental treatment.
In this regard, in a judgment of 27 May 2025, the Coimbra Court of Appeal (available at www.dgsi.pt) reaffirmed that the physician’s duty to inform is an essential condition of free and informed consent, without which medical interference with the patient’s physical integrity is unlawful. Consent given without adequate information on the relevant risks and effects of the medical act is considered invalid.
In the case at hand, the claimant grounds “his claim on medical malpractice — imputed to the 2nd Defendant — consisting in the use of incorrect techniques and procedures, in breach of the leges artis, in the extraction of one of the Claimant’s teeth, which was performed on 10/09/2018 by the 2nd Defendant on the premises and under the orders, management and supervision of the 1st Defendant, on whose behalf she carried out her activity in dental medicine and odontology; and which, moreover, was performed without the Claimant having been provided with any information about the method, consequences or risks of the procedure, having only been told that it would be a fairly easy and simple surgery.” As regards the facts discussed in the proceedings, the claimant alleges that “the Defendant placed a white paste at the tooth extraction site which entered and was absorbed by the nasal sinus, leaving metallic debris and roots in the socket where the tooth was extracted; and states that, from then on, he began to suffer from dental problems — presenting an oroantral fistula — which forced him to undergo several consultations and dental treatments and caused him intense and unbearable pain that affected — and affects — his life and daily tasks in a relevant way, causing him many limitations and difficulties in chewing, eating, resting, performing dental hygiene, socialising with family and friends, and causing him anguish, frustration, indignation and deep depression.”
It should be noted, however, that irrespective of the facts discussed in the proceedings, the appellate decision is particularly relevant because it emphasised that a breach of the duty to inform is an autonomous source of medical civil liability, regardless of whether there is medical malpractice or a breach of the leges artis. Even where the act is technically correct, the omission of relevant information may give rise to compensatory liability.
Nevertheless, liability depends on proof that the damage results from the materialisation of a risk inherent to the medical act that should have been disclosed. The burden of proof is allocated as follows: the patient must demonstrate that the risk occurred and the causal link with the damage suffered, while the physician must prove that the duty to inform was fulfilled regarding the risk that materialised.
This judgment reinforces the centrality of patient self-determination and consolidates the duty to inform as a structuring element of medical civil liability. In this context, Belzuz Advogados, S.L.P. – Branch in Portugal has a team of lawyers with extensive experience in matters associated with medical liability, who can provide legal advice in this area.