With sentence no. 5632 of 23 February 2023, the Italian Court of Cassation has ruled again on medical professional liability.
The Court has ruled that, when an operation fails, the responsibility has to be attributed to the medical doctor if the extent of the causal contribution of the patient’s previous health condition cannot be established. The liability of the doctor and the hospital cannot be excluded a priori merely because the percentage by which the medical incorrect execution has influenced the operation cannot be ascertained.
In the case in question, a woman had ended up in intensive care, because she had been forced to undergo a hysterectomy due to the previous conduct of a doctor who, by incorrectly performing the Credé manoeuvre during child birth, had caused an uterine inversion.
According to the Court of Cassation, the Court of Appeal erroneously excluded a causal link between the hysterectomy and the incorrect manoeuvre, only because the exact percentage of incidence of the latter could not be established. The Cassation Court’s ruling further criticized that the failure to ascertain the exact percentage was also due to the fact that the patient’s medical files were not properly kept. The ruling clarified that the failure to keep the medical files may not be considered to the detriment of the patient.
The Court therefore establishes that, when the damage is due to the concomitance of a (mis)conduct of the involved medical doctor and a previous health condition of the patient, the judge must establish the impact of the conduct with regard to the causality, in application of Article 41 of the Criminal Code, according to which the concurrence of pre-existing, simultaneous or supervening causes, even if independent of the culprit’s action, does not exclude the causal relationship between the action (or omission) and the event. The aim is to attribute the damage to the perpetrator of the wrongful conduct, and to establish, also by using equitable criteria, the impact of the various conducts or events on the level of legal causality. If the extent, by which a preexisting natural cause has contributed to the event, remains uncertain, the consequences shall be attributed entirely to the author of the coexisting action or omission.