La prueba en la responsabilidad civil - cirugía estética

Abstract

Civil liability has been a relevant topic in the study of law and, especially, in current affairs such as those related to cosmetic surgeries. This is due to its rise, as a result of advances in medicine, as well as the change in cultural and social patterns. At the same time, the evidentiary aspects of the stated issue have been addressed in the solution of cases, from different perspectives, which are even contradictory, due to ambiguous legislation and / or with gaps and, therefore, it is necessary to address this problem in light of the Colombian legal regime, supported by comparative law in Brazil, in order to find some plausible answers. The determination of the legal nature of the obligations of means and result, have been the starting point in the determination of the evidentiary burdens, in specific cases of civil liability, derived from the practice of surgeries with beautifying purposes. But this criterion is not always sufficient to guarantee legal certainty, legitimate confidence and substantial law, given the complexity of the collection and assessment of evidence in this type of case, as well as the evident asymmetry between the parties involved in that relationship. legal of a special contractual nature, where the damage, the fault, the causal link, the informed consent, the medical act and the forms of exoneration, become fundamental pillars to speak of attribution of medical responsibility. In this scenario, the legal provisions of an adjective order, contained in article 167 of the General Code of Procedure, regarding the dynamic burden of proof, are called to provide a fair solution that protects the material right, as well as the provisions contained in the Consumer Statute, similar to what happens in the Brazilian legal system.