Medical liability:

The most favorable law always applies to the doctor

The case:

The Court of Appeal, in reform of the acquittal order issued by the Court, declared the doctor responsible for the crime of manslaughter and sentenced him, together with the legal representative of the nursing home, to compensation for damages in favor of the civil parties and to the reimbursement of the costs relating to the double level of judgment.

The doctor was accused of having, with more executive actions of the same criminal design, with negligence, imprudence and inexperience, caused the death of a patient because, as a doctor on call in the nursing home - where the patient was hospitalized with a diagnosis of "schizoaffective psychosis" - he had made the wrong diagnosis of "deep sleep", where, on the other hand, the patient was in a coma due to a cerebral hemorrhage due to a fall, and consequently had erroneously ordered the administration of 250 ml rehydrating solution. and a bottle of TAD 600, with suspension of neuroleptic therapy and application of a synthetic ice bag on the forehead, instead of requiring, at least, the execution of an instrumental examination of the cerebral CT type at a suitable facility, promptly diagnose cerebral haemorrhage and urgently request a neurosurgical consultation, as well as the immediate transfer of the patient to the local hospital or other hospital equipped with suitable equipment and specialized personnel, reiterating the aforementioned erroneous prognosis of "deep sleep" even in the following hour, thus persevering in the wrong diagnostic setting and finally causing the patient's death, which occurred after about five hours due to diffuse cerebral hemorrhage.

The Court of Appeal, which annulled the acquittal of first instance, observes that the application of the principles dictated by the jurisprudence of legitimacy should have led to the observation that the alternative reconstruction, albeit probable and plausible, could not in any case exclude adoption by the of the doctor, once the patient is found lying on the ground with his forehead close to the wall, of a dutiful behavior, consisting in providing for the immediate hospitalization of the patient in a structure suitable for performing a brain CT scan or an Encephalogram, possibly providing for the removal of the hidden hematoma.

The conduct assumed by the accused, therefore, as ascertained by the experts, was not adequate with respect to the concrete factual situation, given that on the occasion of the first examination of the patient he had ordered only the reduction of antidepressant drugs and that after about an hour and thirty minutes, found that the pc. he responded only to painful symptoms, he only ordered the thermal verification and constant observation, instead of subjecting the patient to immediate instrumental checks, with admission to the nearby hospital.

Furthermore, for the second instance judge, even if he wanted to consider correct the diagnosis of "deep sleep" in place of that of coma, it would have been necessary to proceed to the immediate carrying out of instrumental tests, and in particular of a CT scan, and not the mere and useless application of an ice pack.

The failure to carry out checks and checks required for the correct formulation of the diagnosis, recognizable in the conduct attributable to the doctor, has therefore configured a hypothesis of medical professional fault for diagnostic error, the evidence of which is absolutely evident for the Court of Appeal, considering that, whatever the cause of the trauma, "the doctor's error has in any case effectively determined death, albeit slightly anticipating it".

The Cassation

The introduction by the Balduzzi Decree of the parameter for evaluating the work of the healthcare professional constituted by the guidelines and good clinical care practices, with the subsequent confirmation of this parameter by the Gelli-Bianco Law, modified the terms of the criminal judgment by imposing on the judge not only a thorough examination of the criminal relevance of the negligent conduct ascribable to the healthcare professional in the light of these parameters, but, even before , a survey that takes into account the same parameters when ascertaining what would have been the correct alternative behavior that should have been expected from the professional, according to the counterfactual analysis of the causal traceability to his conduct of the harmful event.

The Court of Appeal failed to indicate whether the specific case is governed by guidelines or, failing that, by good clinical-care practices and neglected to consider the causal link, taking into account the salvific behavior indicated by the aforementioned parameters, and to clearly specify whether it was a fault of inexperience, negligence or imprudence.
He then omitted to indicate the degree of guilt ascribable to the accused, which determines a lack of particular significance, given that the degree of guilt has consequences of absolute importance.

The degree of guilt, in light of the Balduzzi decree, is the indispensable premise for discerning the area of the criminally relevant in the matter of medical negligence for which: "The health care practitioner who in carrying out his activity complies with guidelines and good practices accredited by the scientific community does not respond criminally for slight negligence ".

With the entry into force of the Gelli-Bianco law, the parameter of inexperience has assumed greater importance.

The United Sections have specified that the health professional is liable, by way of negligence, for death or personal injury deriving from the exercise of medical-surgical activity: a) if the event occurred due to negligence (even "slight" ) from negligence or imprudence; b) if the event occurred due to negligence (even “slight”) from inexperience when the specific case is not regulated by the recommendations of the guidelines or by good clinical-care practices; c) if the event occurred through fault (even “slight”) due to inexperience in the identification and choice of guidelines or good practices that are not adequate to the specificity of the specific case; d) if the event occurred due to "serious" negligence from inexperience in the execution of recommendations, guidelines or good clinical-care practices, taking into account the degree of risk to be managed and the specific technical difficulties of the act doctor.

As a consequence of this regulatory and interpretative framework, therefore, it will also be necessary to verify in practice which is the most favorable criminal law, in relation to facts dating back to an epoch prior to the last legislative intervention, as in the present case. This, evidently, by virtue of the provisions of the provisions that establish the retroactivity of the most favorable law.

With reference to this last profile, again the indicated ruling of the United Sections, acknowledging the previously outlined approaches, clarified that the precept referred to in Law no. 189 of 2012, art. 3 is more favorable in relation to complaints for health care behaviors - committed before the entry into force of the Gelli-Bianco law - characterized by negligence or imprudence, with the configuration of slight negligence, which only for the Balduzzi decree were exempt from liability when it was proven compliance with guidelines or accredited good practices.

Secondly, in the context of fault due to inexperience, the error caused by slight negligence, which fell on the selective moment of the guidelines, i.e. on that of the assessment of the appropriateness of the guideline, was covered by the exemption from liability of the Balduzzi decree while it is no longer so on the basis of the news which is also less favorable for this aspect.

Thirdly, again in the context of inexperienced negligence, the error caused by slight negligence in the implementation phase alone was exempt for the Balduzzi decree and is the subject of a non-punishable case based on art. 590-sexies of the Criminal Code, being, in this perspective, irrelevant, in relation to the activity of the criminal judge who finds himself deciding in the force of the new law on facts that occurred prior to its entry into force, the legal qualification of the technical instrument through which to reach to the liberating verdict.

In conclusion, according to the Supreme Court, which cancels with postponement, the Court of merit should have verified the existence of guidelines, establish the degree of guilt taking into account the deviation from these guidelines or, in any case, the degree of difficulty of the medical act. , establishing the quality of the fault (imprudence, negligence, inexperience) and its degree in order to verify whether or not the case falls within one of the most favorable forecasts.

You can stay informed on legal news through our blog

Stay tuned with us, follow us on Instagram & Facebook