On the subject of medical negligence, the Third Section of the Italian Supreme Court, with a very recent order (no. 18442 of 28.06.2023), clarified the criteria to be considered by the trial judge in order to assess the extent of compensation to be settled in favor of “iatrogenic” damage victims (i.e. where a doctor has caused, with his conduct, an aggravation of a patients pre-existing condition ).
In particular, according to the Supreme Court, damages must be calculated bearing in mind that the main parameters are the victims loss of vital functions and the consequential hardships these entail, while the degree of disability attributed to him following a coroner’s report based on recognised tables becomes a secondary element, these indicators being for the Court merely conventional datum.
According to the Supreme Court, the deprivations – and the consequent hardships these entail for the victim – progress with geometrically increasing intensity according to the increase in invalidity. Using the conventional way of measuring, the proportions that are created grow according to an arithmetic progression.
Consequently, determining compensation based exclusively on the criteria of using tables would not be fair, as insufficient compensation would be calculated in comparison with the hardships actually suffered by the patient.
Thanks to an evaluation of specific cases taking into account the elements suggested by the Supreme Court however, a fairer compensation can be obtained whilst obeying the principle of full compensation as the quantification of the damage would increase more than proportionally in respect to the severity of the reported sequelae.
On the same note , referring to specific cases which the Court is called on to decide, it was clarified that the trial judge, in order to identify the amount due to victims of damages added to a pre-existing permanent impairment, must calculate the monetary value of the non-pecuniary damages in their entirety (therefore including the injuries existing before the doctors intervened), then deduct from this amount the amount corresponding to the pre-existing impairment.
To sum up, according to the Supreme Court, calculating recoverable damages by deducting points of the pre-existing invalidity from the newly established invalidity by consulting tables would neither be fair or sufficient.
Trial judges will, however, always have the power to apply “corrective justice equity” or “inclusive” , according to the circumstances of the specific case at hand.