How long do you have to sue a doctor in Brazil? Why “three years” is usually the wrong answer

By Ramon Martins Andrade, attorney (OAB/RJ 188.374)

Search the question in English and you will be told, confidently and repeatedly, that the limitation period for medical malpractice in Brazil is three years. That figure comes from a real provision of Brazilian law. It is also, in most private healthcare cases, the wrong one to rely on — and the difference is not academic. It is two extra years, and a different starting date.

Two codes, two answers

The three-year figure comes from the Civil Code. Article 206, § 3, V, of Law 10.406/2002 sets a three-year limitation period for claims of “reparação civil” — civil damages. It is the general rule, and if the relationship between the parties were an ordinary civil one, that would be the end of the matter.

Private healthcare in Brazil, however, is normally a consumer relationship. Hospitals, clinics, laboratories, aesthetic practices and health insurers supply services to consumers, and the Consumer Protection Code (Law 8.078/1990) applies to them. Article 27 of that Code provides a different period, and a different way of counting it:

The starting point matters more than the number

Most foreign readers focus on the length of the period. In practice, the decisive element is the trigger. Under the Civil Code the clock is generally tied to the event; under article 27 of the Consumer Protection Code it is tied to knowledge.

That distinction decides entire categories of case. A laboratory report misread in 2020 and only identified as wrong in 2024. A retained surgical item discovered years later on an unrelated scan. A prosthesis whose failure becomes apparent long after implantation. An aesthetic result that only turns out to be irreversible once corrective attempts fail. In all of them, a rule counted from the procedure date would extinguish the claim before the claimant could reasonably have known it existed.

This is also why a flat “three years” is not merely conservative advice — it is advice that can cause a viable claim to be abandoned.

Honest caveat: Brazilian courts are not unanimous

It would be misleading to present this as settled. Brazilian case law and scholarship still divide on whether medical liability claims fall under article 27 of the Consumer Protection Code or under article 206, § 3, V, of the Civil Code, and outcomes vary by court and by how the claim is framed. Portuguese-language sources contradict each other openly on the point, which is precisely why the English-language pages that reduce it to one number are unreliable.

The practical consequence is straightforward: the shorter period should be treated as the operative deadline for planning purposes, and the longer one as an argument to be made — not the other way round.

When the defendant is the State

A third regime applies when the claim is brought against a public hospital, a municipality, a state or the federal government — which is the case for treatment provided through the public health system, the SUS. Article 1 of Decree 20.910/1932 provides that “todo e qualquer direito ou ação contra a Fazenda federal, estadual ou municipal, seja qual for a sua natureza, prescrevem em cinco anos contados da data do ato ou fato do qual se originarem”: five years, counted from the act or fact giving rise to the claim.

Note the difference in trigger once again. Five years, but counted from the event — not from knowledge. Two claims arising from the same hospitalisation can therefore have different deadlines depending on whether the institution is private or public.

So the correct answer is a question

“How long do I have?” cannot be answered without three pieces of information: who the defendant is (private provider, insurer, or public entity), whether the relationship is a consumer relationship, and when the claimant learned of the damage and of its author — a date that is often documented, in a second opinion, a report, or an email, and that is worth locating before anything else.

If you are unsure of that date, do not estimate it downwards for comfort. Locate the document that fixes it. In Brazilian litigation the medical record is the ordinary starting point, and the patient is entitled to a copy of it.

In short

Three years is the Civil Code default. Five years, counted from knowledge of the damage and of its author, is the consumer rule that usually governs private healthcare. Five years from the event is the rule against public bodies. Any source that gives you a single number without asking who you intend to sue is answering a different question from yours.

R.M. Andrade Advogados advises international clients on medical liability and health insurance disputes in Brazil. Readers considering litigation here may also want to understand what losing a lawsuit in Brazil costs before proceeding. See international clients.

If your situation resembles the one described here, get in touch with the office.

Ramon Martins Andrade (OAB/RJ 188.374) is a lawyer who graduated from UFRJ in 2011, with master’s degrees from Université Sorbonne Nouvelle and from the Naval War College (EGN, Brazilian Navy). He is currently a researcher in Human Rights and Health at ENSP/Fiocruz.

This content is for information and education only. It does not constitute legal advice, advertising of results or any guarantee of outcome, under Rule 205/2021 of the Brazilian Bar Association (OAB).