Medical liability for the failure to provide information on alternative treatment procedures

The topic of patients’ informed consent lies at the centre of a recent ruling by the Cassazione Civile (no. 1936 of 23rd January 2023),  which addresses the concrete information that must be communicated to patients and, in particular, how to perform the duty to disclose information on therapeutic alternatives, and what the consequences are for shortcomings in this regard.

The Supreme Court examined the case of a patient who had undergone a surgery, at the end of which, as a result of unforeseen complications, it had become necessary to undergo a further operation that caused serious permanent damages.The patient subsequently took legal action against the hospital, and the Court of First Instance upheld his claims and ordered the facility – by order 702 bis c.p.c. – to compensate him. The Court of Appeal upheld the first instance ruling because the Court of First Instance had based its decision on the findings of the court-appointed expert opinion, which established that the complications that occurred, although rare and unforeseeable, were due to the operating technique performed, which was deemed obsolete. Had the surgery been performed with a newer technique instead, these complications would have been avoided.

However, the hospital argued that this conviction is unjustifiable, since the surgeon’s error lay neither in the choice of the surgical technique (which, at the time of the operation, seemed proper), nor in its impermissible (i.e. in violation of the leges artis) execution. In fact, according to the appealed decision, the operation was performed correctly under the chosen technique, but the thereafter unforeseeable complications occurred due to the patient’s unusual personal condition, which was unknown at the time of operation. Thus, the surgeon’s fault solely consisted in his failure to inform the patient that there was another surgical technique which would have likely prevented such damage. The hospital claims that this failure to inform the patient of an alternative cannot be deemed the cause of the harm, since the choice and execution of the technique were not faulty by nature. In fact, even if the patient had been informed of the existence of an alternative technique, he would not have chosen it, since the surgeon whom he had turned to was an expert in the technique performed.

On the subject of merit, according to the Court of Cassation, the approach taken by the hospital is correct; in fact, the Court of Appeal appeared to judge the only culpable conduct attributable to the doctor to be his failure to inform the patient about the therapeutic alternatives. If this was his only culpable conduct, in order to sentence the medical facility to pay damages, the Court would have had to reconstruct the causal link between the failed communication and the occurrence of the damage, hypothesising what would have happened if the doctor had informed the patient of the possibility of choosing between one technique or another. The Court of Appeal, however, did not make such an assessment, but merely stated that the new technique would have prevented the event and that, consequently, the doctor’s negligent conduct was the cause of the damage. Thus, the judgement under appeal failed to establish the causal link between the breach of the precautionary measure and the harmful event.

On the above grounds, the judgement under appeal was set aside by the Supreme Court and remitted to the original Court of Appeal, with a different composition, which will have to establish by means of a counterfactual judgement whether it is plausible to affirm that a complete disclosure of information to the patient would have led the latter to choose the alternative technique which was not performed.