In a special appeal, the 3rd Panel of the Superior Court of Justice (STJ) denied a doctor the right of recourse against his former partner after full payment of compensation resulting from a surgery, in which both were condemned for material and moral damages and where was declared the jointly liability.
It is worth highlighting that before the compensation lawsuit that culminated in the return one was filled, the two partners signed a De facto Partnership Distraction, delimiting their respective responsibilities. It is noteworthy that the clause established the division of responsibility to make each partner (doctor) responsible for their patients and their own actions.
In the decision, the Minister Ricardo Villas Bôas clarified that the liability generated two distinct relationships: internal, between the medical partners, and external, between the partners and the creditor (author of the compensation request).
In view of the right of return provided in art. 283 of the Brazilian Civil Code, the Minister indicated the possibility of ruling out objective liability, seeking to establish the contribution of each partner in the specific case. Furthermore, he highlighted that art. 285 of the same code determines that the liability of a partner will be full if the debt concerns only one debtor (partner).
However, despite the above, the Minister argued that the distract was a voluntary division of liability, where in his words, “it appears that the instrument deals exactly with the assumption of responsibilities by the partners, natural persons, from the dissolution of the company”. In this way, it was understood that the distract is the instrument responsible for defining liability and should be respected, dismissing the appeal.