Liability for Service Malfunction

Legal Brief by Carlos Vasconcelos

The end of 2024 was marked by news reports about deaths allegedly linked to delays in emergency medical assistance provided by INEM – the National Institute for Medical Emergencies.

According to public reports, the strike by pre-hospital emergency physicians and the resulting reduction in the number of medical emergency professionals on duty caused serious disruptions in responding to calls for help and deploying resources.

Setting aside potential criminal liability issues that could be debated and adjudicated, the situation, in abstract terms, calls into question the legal framework of the State’s and other public entities’ extra-contractual civil liability for service malfunction, explicitly provided for in paragraphs 3 and 4 of Article 7 of Law No. 67/2007, of December 31. This framework can be seen as a tertium genus, somewhere between subjective and objective liability.

According to these legal provisions—enshrining a solution that had already been applied by the courts for years—the State and other public legal entities are civilly liable for damages when they result from an abnormal functioning of the service. Thus, an obligation to compensate arises even if the damage was not caused by the specific actions of a particular officeholder, employee, or agent, or if it is impossible to establish individual responsibility for the act or omission.

What must be demonstrated, in each specific case, is that, given the circumstances and reasonable performance standards, the service was expected to act in a way that could have prevented the damage from occurring.