Isabel Fatima Alvim Braga1; Laila Zelkcovicz Ertler2; Renata Bastos Mello Pereira2
INTRODUCTION: Medical certificates are commonly issued in medical practice. Use of medical certificates with alterations or false content is characterized as a crime, denominated "Falsification of medical certificates", by the Brazilian Penal Code article 302. Data on this type of crime are scarce in Brazil.
OBJECTIVE: To collect data relative to criminal lawsuits for falsification of medical certificates filed at the Court of Justice of the State of São Paulo.
METHODS: A keyword-based search of tried cases with no time limitation was conducted on the trial court database available at the Court of Justice of the State of São Paulo website using the search term "certificate".
RESULTS: Although small, the number of tried cases increased along the analyzed years. Most defendants were non-physicians and male and offences had relationship with the workplace. The number of trial court convictions was high.
CONCLUSION: The results point to the need to prevent this type of crime; digital certificates represent a good means to achieve this goal.
Keywords: health certificate; criminal law; damage liability; civil protection.
CONTEXTO: O atestado médico é um documento de emissão corriqueira na prática médica. O uso desse documento com alterações ou com conteúdo que não seja verdadeiro é tipificado como crime no art. 302 do Código Penal brasileiro, denominado "Falsidade de atestado médico". O Brasil, no entanto, tem uma escassez de dados estatísticos sobre esse crime.
OBJETIVOS: Realizar um levantamento de dados acerca da temática dos processos sobre atestado falso na esfera penal no Tribunal de Justiça do Estado de São Paulo.
MÉTODOS: Foi realizada uma pesquisa por palavra-chave na área de consulta de julgados de 1ª instância do site do Tribunal de Justiça do Estado de São Paulo, com o descritor "atestado", de julgados sem data determinada.
RESULTADOS: Nos anos analisados, apesar do número pequeno de casos, houve uma tendência de crescimento no número de julgados. A maior parte dos réus era de não médicos, do sexo masculino e com infração relacionada ao ambiente de trabalho. Houve um grande quantitativo de condenações em 1ª instância.
CONCLUSÃO: O estudo apontou para a necessidade de coibição desse crime, sendo a certificação digital uma boa forma de alcançar esse objetivo.
Palavras-chave: atestado de saúde; direito penal; responsabilidade civil; proteção civil.
Medical certificates are written documents in which physicians make a presumable legitimate statement about the state of health or disease of individuals they examined, asserting the presence, stage and repercussions (morbidity and mortality) of a given disease; alternatively, medical certificates might give evidence of a state of full health and fitness for a given activity1.
The International Classification of Diseases (ICD) is a standardized disease system first adopted in 1893 and last updated in 19892.
ICD Chapter XXI lists the factors that influence the health status and contact with health services, from which we call the attention to the following aspects3:
This chapter should not be used for international comparison or for primary mortality coding. Categories Z00-Z98 are provided for occasions when circumstances other than a disease, injury or external cause classifiable to categories A00-Y89 are recorded as "diagnoses" or "problems". This can arise in two main ways:
(a) When a person who may or may not be sick encounters the health services for some specific purpose, such as to receive limited care or service for a current condition, to donate an organ or tissue, to receive prophylactic vaccination or to discuss a problem which in itself is not a disease or injury.
(b) When some circumstance or problem is present which influences the person's health status but is not in itself a current illness or injury. Such factor may be elicited during population surveys, when the person may or may not be currently sick, or be recorded as an additional factor to be borne in mind when the person is receiving care for some illness or injury.
Inclusion of ICD codes in medical certificates was the target of the Federal Council of Medicine (Conselho Federal de Medicina — CFM), Juridical Sector (SEJUR) ruling no. 226/2010. The ruling clearly states that compulsory inclusion harms the right to confidentiality ensured by the Code of Medical Ethics (CME), but does not object to inclusion when explicitly authorized by the patient4.
Despite the serious consideration such public trust documents deserve, breach of trust occurs in some cases. The result is an offence described in the Penal Code article 302 as "Falsification of medical certificates", which is defined as issuing or presenting a fabricated medical certificate, and is punished with prison sentences from one month to one year5.
Within the administrative sphere of CFM and Regional Medical Councils (Conselhos Regionais de Medicina — CRM) falsification of medical certificates is considered in the CME, which establishes penalties for the involved physicians6. To be sure, a full chapter — chapter X — of the CME is devoted to medical documents, being physicians prohibited from:
Art. 80. Issuing medical documents without previous performance of professional actions that justify them, are biased or do not correspond to the truth.
Art. 81. Providing statements to obtain some advantage from them.
Art. 82. Using public institution forms to prescribe or certificate facts established in their private practice.
Art. 83. Pronouncing a death they had not personally witnessed, or for patients to whom they had not provided care, except when acting as on-call or substitute physician, or in cases of autopsy and medical legal examination.
However, the aforementioned offence diverges from the description given in the Penal Code article 299, which states:
Art. 299. To omit statements in public or private documents that should have been included in them, or to include or have include false statements or different from the ones that should have been written with the goal of transgressing rights, create an obligation or alter the truth about a juridically relevant fact.
It should be noticed that the latter formulation does not apply to physicians only, but to each and any individual.
Despite the relevance of the subject, few studies addressed lawsuits targeting ethical wrongs by physicians, but most analyze administrative aspects at the level of CRM7-9. In regard to the odd studies that did focus on the judicial sphere, most merely considered the civil side, i.e., the one related to the physicians' civil liability10. In turn, almost none approached the criminal side in a broadly encompassing manner11,12, but mainly addressed accusations of homicide and bodily injuries at the expense of crimes considered less severe from the penal point of view, but which have enormous moral consequences, as we discuss below.
As a result, there are not official statistical data on lawsuits involving physicians and related issues in Brazil. Yet, this type of lawsuits seems to be increasing according to the perception of society at large13.
In turn, some studies on absenteeism (as e.g., due to pregnancy) and presenteeism in Brazil stand out14-16.
As a function of the aforementioned considerations, the present study is fully justified as a pioneering milestone, since no previous study addressed the opinions of courts on the crime known as "Falsification of medical certificates (Penal Code article 302).
The aims of the present study were:
to investigate the frequency of lawsuits for "Falsification of medical certificates" (Penal Code art. 302) at the original jurisdiction level of the Court of Justice of the State of São Paulo;
to determine the frequency of convictions;
to investigate the defendants' profile (gender and professional category).
A keyword-based jurisprudence search was conducted on the trial court database available at the Court of Justice of the State of São Paulo website; the search term used was "certificate". The search comprised cases tried on any date until 11 May 2017.
From search box "criminal law subject" we selected items "crimes against public trust" and "false medical certificate".
The following variables were analyzed:
annual distribution of lawsuits;
trial court conviction (yes or no);
defendants' gender (male or female);
defendant is a physician (yes or no).
All the data are open access and available on Internet.
The data were tabulated, and the variables of interest analyzed using Microsoft® Excel®.
We located 51 lawsuits registered since the time convictions became digitized; 1 lawsuit was excluded for being misclassified (it corresponded to another type of crime) and further 2 because they were repetitions. Therefore, 48 lawsuits were included for analysis (Graphic 1).
The distribution of defendants was as follows: physician (2%), physician + non-physician (2%) and non-physician (96%). This is to say, in only 2 (4.16%) cases the defendant was a physician (Graphic 2).
100% of the false certificates issued by non-physicians were intended to justify absences from work.
Eighteen (36%) lawsuits were filed against women, 31 (62%) against men and 1 (2%) against one man and one woman.
Only 1 (2.08) defendant was acquitted. Four cases were plea bargained (a deal was made to end the trial after the defendant agreed to fulfill some demands established by the judge). In 3 (6.24%) cases the lawsuit was conditionally suspended. In 1 (2.08%) case the statute of limitations had expired. For 28 of the defendants found guilty, prison was replaced by fines or restriction of rights. In 11 cases criminal liability was extinguished (included one defendant's death).
One of the main limitations of the present study is that it was extremely preliminary, and merely aimed to serve as guide to the larger scope of this type of crime. In addition, we analyzed trial court decisions only. As a result, lawsuits filed more recently remained outside the scope of the present study. We should notice that data loss was only of 4% relative to the number of initially located lawsuits. While lawsuits began to be filed at the Court of Justice of the State of São Paulo in 1975, not all the data were digitized and entered in the decisions database17, for which reason we might not rule out the possibility of an immeasurable data loss.
We should stress again that the penalty for fabricating medical certificates is prison for of 1 month to 1 year5. According to the Special Court Law, crimes punishable with incarceration for up to 2 years are considered misdemeanors18. On these grounds, falsification of medical certificates could be tried at criminal special courts. Probably this accounts for the fact that although the rate of convictions found was high, convicts were not actually incarcerated, but penalties were commuted.
Special courts were created to speed up lawsuits involving misdemeanors. Nevertheless, the Brazilian judiciary remains slow; this might partially explain why we located one single lawsuit from 2016 and none from 2017. This fact notwithstanding, Graphic 1 evidences a relative increase of lawsuits starting in the 2000s, which denotes a higher frequency of this type of lawsuit.
The distribution of defendants per gender disagrees from the results of a study on the profile of jail inmates in the state of Rio de Janeiro, which was overwhelmingly male — the odds for men to be convicted for robbery or homicide are twice higher compared to women19. Yet, we should observe that the study we selected for comparison analyzed a jail inmate population, while the penalties for the crime targeted in the present study are much milder. Therefore, the aforementioned difference between sexes might be less evident regarding lesser criminal acts.
We had enormous difficulty to locate studies addressing falsification of medical studies for comparison. As a fact, there is a global lack of analyses of the Brazilian judiciary data. We did find studies on absenteeism and presenteeism. One study conducted with employees at an industrial company in the interior of the State of São Paulo found that a large number of the participants reported to having had worked while sick20.
One study performed with pregnant women in Maranhão found a high rate of absenteeism, as well as a relationship between reported absence from work and income, higher income being associated with higher absenteeism rates14. Among military policemen, the highest rates of absenteeism were associated with traumatic injuries and orthopedic conditions16.
In the present study, the false medical certificates issued by non-physicians were associated with work-related situations, absenteeism being thus justified based on false documents. To have an idea of the relevance of the data on absenteeism, one study conducted at the Occupational Medicine Coordination, Municipal Government of Vitória, Espírito Santo, found that 0.52% of sick leaves were denied by the medical legal service21. Another study conducted with nursing professionals at a university hospital evidenced mental disorders and musculoskeletal diseases as the main causes of sick leaves22.
Although the Penal Code article 302 indicates that falsification of medical certificates is a crime exclusive to physicians, i.e., only physicians can perpetrate it, we found that the vast majority of the defendants were not physicians, some of whom were eventually convicted. Also Prates and Desanti understand that this crime exclusively concerns physicians23,24. Our results are thus discrepant, because even though we selected "falsification of medical certificates" in the search box, we located third parties alien to the medical profession as perpetrators, even when many among the decisions clearly cited Penal Code article 302. Given this disagreement between legislators and judges, we will devote a part of the present discussion to the prevention of this kind of situation among physicians.
Our finding, i.e., that false medical certificates are very rarely issued by physicians, is corroborated by the results of a study conducted by Falcão, which showed that relative to 1,722 complaints filed with the CRM of the State of Rio de Janeiro (CREMERJ) from January 1988 through March 1993, only 5 physicians were convicted of selling false medical certificates25. One study performed at the CRM of the State of Santa Catarina (CREMESC) of complaints filed from 1958 through 1966 showed that 3% of the administrative cases concerned CME Chapter X, i.e., the one on medical certificates and reports26. In his study, Fortes27 located eight court decisions focusing on the criminal liability of physicians vis-à-vis false medical certificates, five of which concerned death certificates, which was not the case in the present study.
Analysis of the temporal distribution of lawsuits indicated a trend to increase after the 2000s. The development of information technology and quicker flow of information possibly made simpler for employers to investigate medical certificates. Falsifications might have also occurred in the past, but brought less consequences to perpetrators. Barazetti called the attention to the technical difficulties inherent to bureaucratic investigations of the trustfulness of medical certificates on an individuale basis28. In regard to commutation of prison for fines and/or restriction of rights, the Criminal Procedure Code29 article 696 states:
The judge might suspend for no less than 2 (two) and more than 6 (six) years penalties of reclusion and detention of up to 2 (two years), or for no less than 1 (one) and more than 3 (three) years penalties of simple incarceration, provided the offender: (text formulated in the Law no. 6,416, from 24 May 1977)
I – did not receive a non-appealable sentence of freedom deprivation for another crime in the country or abroad, except for the stipulations made in the single paragraph of Penal Code art. 46. (Text formulated in Law no. 6,416, from 24 May 1977)
II – the offender's antecedents and personality, motives and circumstances of the crime allow predicting he or she will not relapse in crime.
Single paragraph. Were the beneficiary to be tried for another crime or misdemeanor, the period of the penalty suspension will be prolonged until the definitive sentence.
As the penalty for falsification of medical certificates is prison for up to 1 year, in practice conviction did not result in jail in any of the analyzed cases, but all the penalties were commuted.
In regard to the frequency of convictions by comparison to the extremely low rate of acquittals, we might observe that, as a rule, employers check medical certificates when they suspect they might be false and as a result, they produce proofs that contribute to the conviction of defendants.
Convictions for unduly use or falsification of medical certificates are not exclusive to Brazil. In some countries, such certificates are issued online. Information technology affords an enormous potential for investigation of evidence of irregularities30.
In 2014 Australia launched a code of conduct for doctors similar to the Brazilian CME, which among other subjects addresses the need for documents issued by physicians to be truthful30. Item 8 of this code states:
8.8 Medical reports, certificates and giving evidence: the community places a great deal of trust in doctors. Consequently, doctors have been given the authority to sign a variety of documents, such as death certificates and sickness certificates, on the assumption that they will only sign statements that they know, or reasonably believe, to be true. Good medical practice involves:
8.8.1 Being honest and not misleading when writing reports and certificates, and only signing documents you believe to be accurate.
8.8.2 Taking reasonable steps to verify the content before you sign a report or certificate, and not omitting relevant information deliberately.
8.8.3 Preparing and signing documents and reports if you have agreed to do so, within a reasonable and justifiable timeframe.
8.8.4 Making clear the limits of your knowledge and not giving opinion beyond those limits when providing evidence31.
The surprising results of the present study make compelling warning physicians as to how to avoid this type of incident. All the crimes described here derived from the wish of workers to be paid for a period they were allegedly sick. We suggest for physicians to never leave stamps, coats and documents unattended. In addition, when called by some company to confirm the truthfulness of certificates they issued, they should file an incident report and immediately notify the corresponding CRM to protect themselves of eventual damage to their professional reputation.
Digital certificates are increasingly emerging as a mean to issue medical documents in a practical, reliable and, indeed, safe manner32. They involve software that enables the flow of messages and information across the cyberspace and seeks to provide: issuer authentication; confidentiality; information integrity and integrality; production of technical proofs; and safe arrival of information to the intended addressees without any third-party interference33. To be sure, there is a risk for users' passwords to be hacked — yet this seems to be less feasible than simple falsification of stamps and signatures30. In addition, cryptography has shown promising results as concerns hacking of online passwords34. Besides practical, digital certificates make investigation of the authenticity of documents allegedly issued by physicians simples and faster.
Occurrences of falsification of medical certificates by patients are increasingly more frequent at the Court of Justice of the State of São Paulo. In a large number of cases defendants use certificates to be receive undue payments from their employers. New strategies are needed to combat this type of fraud, among which digital certificates stand out; however, although already implemented in Brazil, their use is still incipient.
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21 de Maio de 2017.
Aceito em 10 de Janeiro de 2018.
Trabalho realizado na Fundação Oswaldo Cruz (FIOCRUZ) – Rio de Janeiro (RJ), Brasil.
Fonte de financiamento: nenhuma