The classification of the offense of passive corruption stipulated in Article 317 of the Penal Code requires proof that the physician obtained an undue advantage. This does not happen when there is simply compensation or reimbursement of expenses, even if the administrative rules regarding his behavior are not complied with.
Based on this understanding, the Fifth Committee of the Supreme Court of Justice granted an ex officio writ of habeas corpus to absolve a physician from the charge of passive corruption for receiving R$2,500 from SUS patients for using equipment they owned during surgery with the support of the public health system.
The person the doctor examined had a gallbladder problem, and his diagnosis recommended surgical intervention. The professional explained to the patient that the SUS covers open surgery, the recovery of which is slower. If he wanted to close the surgery, he would have to pay R$2,500 to use the video laparoscopy equipment, which the doctor owns, plus R$500 for the anesthesia.
The patient agreed to close the procedure, considering that he is independent and needs to recover quickly to return to work.
For the Public Ministry in São Paulo, the defendant paid an undue amount from the patient in the public network, while all expenses were covered, at the same time, by the municipal public health. The prosecution issued a prison sentence of three years and 20 days under the open regime.
The rapporteur, Minister João Otavio de Noronha, explained that the classification of Article 317 of the Penal Code requires proof that the doctor has received an undue advantage, which does not happen when there is simply compensation or reimbursement of expenses.
This is because the use of video laparoscopy entails maintenance costs and parts replacement. It would be unreasonable for the physician to be obligated to bear such expenses, especially when the patient agrees to adopt the surgical technique which he considers most advantageous.
It concluded that “the reimbursement of expenses for the use of the equipment does not constitute an advantage for the appellant, since the basic rule of Article 317 of the Optional Protocol has not been established”.
The vote was unanimous. The Rapporteur was accompanied by Ministers Reinaldo Soares da Fonseca, Ribeiro Dantas and Joel Ilan Paciurnik, and Judge Jessuino Risato was summoned.
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