It is not enough for the doctor to identify the existing pathology if he is not able to exclude the alternative pathology

The case:

The Court of Appeal upheld the first degree sentence in which the director of the Obstetrics and Gynecological clinic and the colleague in charge of the Urology department were acquitted of the accusation of having caused the injured person personal injury for negligence consisting of negligence, imprudence and inexperience for having subjected the patient to a laparoscopic total hysterectomy surgery for a suspected endometriosis without any indication, failing to carry out preliminary instrumental tests, such as an MRI scan of the pelvic excavation and a transvaginal ultrasound with a high frequency probe that they would have made it possible to formulate a correct and safe medical diagnosis, or in any case to exclude the existence of the aforementioned pathology;

in completing the hysterectomy despite the absence of the suspected endometriotic pathology since the preliminary inspection of the operating field; in failing to correctly identify the ureters during the operation, possibly also through the insertion of two urethral catheters, thus causing a right urethral lesion with consequent establishment of an acute abdomen picture and the onset of a vaginal ureteral fistula:

Injury from which resulted for the injured person the need to undergo a further surgery of right ureterocystoneostomy with anchoring of the bladder to the psoas muscle with the application of a double J ureteral catheter and emptying of the urinoma, from which they derive for the person offense, as a result of negligent conduct of the doctor (medical liability), which consisted in incorporating the genitofemoral nerve in a constricting suture during the anchoring maneuvers of the ureter to the psoas muscle and using excessively deep anchoring points from the bladder to the psoas muscle - the following injuries:

lesion of the genital branch of the genitofemoral nerve and of the femoral nerve, pelvic pain syndrome, dysuric syndrome, defecatory difficulty, dyspareunia, vesicoureteral reflux, secondary fibromyalgia syndrome, Sjogren's syndrome and paresis of the right lower limb with walking difficulties.

From these injuries resulted for the injured party the onset of an incurable disease and a permanent weakening of the organ of walking.
The Court of Appeal had one medical - legal expertise appointing a panel of experts in the various health disciplines that highlighted the difficulty of establishing the diagnosis of endometriosis and the uselessness of a drug therapy, which cannot be prescribed for more than six months, recognizing the unpredictability of the ureteral lesion, whose percentages of complications were much greater than 0%-3%.

The Court of Appeal, while recognizing the existence of the causal link between the execution of the surgery and the lesion of the ureter, ruled out that the conduct of the healthcare professional was characterized by negligence or inexperience, for errors in diagnosis or in the execution of the intervention.

On the contrary, the consultant of the plaintiff linked a part of the pathologies from which the patient was affected (in particular the neurological pathology of the right lower limb) also to the first total hysterectomy by laparoscopic way, to which she had been subjected in a manner reckless and imprudent, due to the failure to correctly evaluate, from an anamnestic and diagnostic point of view, the disorders reported by the patient, not considering as a differential diagnosis the "suspected endometriosis and adenomyosis", "chronic pelvic pain syndrome" and, above all, omitting to carry out preliminary instrumental investigations, such as an MRI scan of the pelvic excavation or a trans-vaginal ultrasound with high-frequency probes, which would have allowed a priori to exclude the existence of an endometriotic pathology (as, later, ascertained as a result of the histological examination of the uterus) and the need to operate.

He accused the aforementioned surgeon of having caused the patient, during a laparoscopic hysterectomy, a lesion of the right ureter, resulting in the establishment of an acute abdomen and the onset of a uretero-vaginal fistula; injury that could have been avoided by implementing maneuvers and precautions aimed at avoiding the occurrence of this damaging event.
According to the consultants of the PM, the therapeutic option chosen (hysterectomy) and the technique used (laparoscopy) had been correct and appropriate to the case in question.

As for the ureteral lesion following the laparoscopic hysterectomy, the aforementioned specialists agreed that it represented a non-preventable complication of gynecological surgery (given that the anatomical location of the ureters, due to the close relationship with the pelvic area, made them susceptible to iatrogenic damage during surgery) not attributable to the fault of the performing surgeon.

The consultants of the defendants also reached conclusions not dissimilar to those formulated by the consultants of the PM, having considered the laparoscopic hysterectomy and ureterocystoneomy operations appropriate and performed by the respective surgeons in a congruous and free from technical errors and not excluding that the neurological pathology a load of the lower limb of the U. was a consequence of the "Sjogren's syndrome", an autoimmune neurological disease from which the same was affected, since the year 2006.

In light of these conflicting expert results, the Court of Appeal therefore ordered a medico-legal report pursuant to art. 603 cpp, appointing a board of experts in the field of interest - a gynecologist, a urologist it's a coroner - to ascertain the causes and responsibilities of the damaging event and acknowledged the conclusions they had reached for the scientific accuracy and completeness of the work carried out, noting that from a technical point of view the hysterectomy was the only reasonably feasible way for the resolution of the problems described by the patient, who came to the attention of the operator with a symptomatology of persistent blood loss and pelvic pain even after a previous adhesiolysis operation.

The causal link between the surgical conduct and the injury ureter but came excluded that such conduct was characterized by negligence and / or inexperience.

The Court of Appeal did not detect the existence of a guilty diagnostic error (the uterus however presented a "uterine fibro-leio-myomatosis" which made removal indicated) and of a guilty error in the execution of the operation, observing that the ureteral lesion is one of the most frequent complications related to abdominal and endoscopic hysterectomy, as described extensively in the specialized literature recalled by the experts.

The causal link between laparoscopic hysterectomy and right ureteral damage was certain, but the lesion represented an unpredictable complication, which occurred in the correct use of the surgical instrument.

The judgment of the Supreme Court:

The Supreme Court partially annulled the judgment of the Court of Appeal due to lack of motivation of the expert opinion by elaborating the principle according to which the doctor who is faced with the possibility of differential diagnosis must not be satisfied with the reached conviction of having identified the existing pathology when it is not able, on the basis of his knowledge of the medical art, to exclude the alternative pathology, continuing the diagnostic tests and the necessary treatments.

In terms of medical professional negligence, the diagnostic error occurs not only when, in the presence of one or more symptoms of a disease, it is not possible to frame the clinical case in a pathology known to science or when an erroneous classification is made, but also when you fail to perform or arrange checks and checks required for the purpose of a correct formulation of the diagnosis.
Predictability consists in the possibility of predicting the event that would follow the unauthorized risk and must be commensurate with the parameter of the agent model, of the homo eiusdem professionis et condicionis, enriched by any greater knowledge.

According to the Supreme Court, the collegial expertise did not address the above problems relating to the possibility of practicing curative therapies and examinations in order to identify the pathology, the choice to proceed with a dangerous surgery despite these deficiencies in the diagnosis and the possibility of preventing the increased risk thanks to a preventive investigation of the case.

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