Medical malpractice and crime victims: how important is the choice of a good lawyer

In recent years, the legal discipline regulating medical negligence and the criminal liability of doctors has undergone two major changes: the well-known Balduzzi Law no. 189/2012 and the Gelli Law no. 24/2017 completely innovated the very concept of criminal relevance in the behaviour of healthcare professionals.

The Balduzzi law represented an important intervention in the area of the criminal liability of healthcare professionals: according to it, a doctor who respects good professional practice and the indications of the scientific community is not to be held criminally liable for minor faults.

Before the Balduzzi reform, in essence, the doctor was much more often held liable for his patients’ illness and eventual death.

The enactment of Gelli Law No. 24/2017, then, made substantial changes to the Criminal Code, repealing, inter alia, the first paragraph of Article 3 of the Balduzzi Law. In particular, Article. 590-sexies under the heading ‘Culpable responsibility for death or personal injury in healthcare’, which identifies the cases in which the doctor is to be charged with culpable responsibility for the death or personal injury of the patient, specifying that ‘if the event has occurred due to malpractice, punishability is excluded when the recommendations provided by the guidelines as defined and published in accordance with the law are complied with, or, in the absence thereof, the good clinical and healthcare practices, provided that the recommendations provided by the aforementioned guidelines are appropriate to the specifics of the case’.

This provision excludes the punishability of the health profession if the event occurred due to malpractice. The liability of the doctor, on the other hand, will not be excluded if the event occurred due to professional negligence.

Generally speaking, this rule is intended to exempt from liability the health care practitioner who, in the performance of medical operations, has acted with malpractice, having, however, complied with ‘the recommendations set out in the guidelines or good clinical-assistance practices’, provided that the recommendations set out in the aforementioned guidelines are ‘appropriate to the specifics of the case’.

This formulation, however, proved to be unclear from the outset and gave rise to numerous contrasts. For this reason, the Supreme Court, in 2018, with the famous ‘Mariotti’ ruling, decided to crystallise certain points concerning the ‘new medical fault’.

In this regard, therefore, the jurisprudence affirmed that the healthcare professional is liable, by way of fault, for death or personal injury resulting from the exercise of medical-surgical activity:

– if the event occurred as a result of negligence (even slight negligence) or imprudence;

– if the event occurred as a result of negligence (even slight negligence) due to malpractice, when the specific case is not governed by the recommendations of the guidelines or good clinical practice;

– if the event occurred as a result of negligence (even slight negligence) due to malpractice in the identification or choice of guidelines or practices that are not suited to the specific features of the concrete case;

– whether the event occurred as a result of ‘serious’ negligence due to inexperience in the execution of recommendations of guidelines or good practice that were appropriate, taking into account the degree of risk to be managed and the special difficulties of the medical act.

Lastly, another well-known interpretative problem that has arisen over time has been that concerning the succession of criminal laws over time, with particular regard to the pre-existing regulatory framework given by the so-called ‘Balduzzi Decree’. More specifically, the question has been raised as to whether, for the purposes of the application of Article 2 of the Criminal Code, the law that introduced Article 590-sexies (check citation Alex) into our system should be considered the more favourable law, or Article 3 of the “Balduzzi Decree”.

Also on this point, in order to provide clarity, case law has intervened, specifying that: “that the second paragraph of Article 590-sexies is a more favourable rule, since it provides for a cause of non-punishability of the doctor that operates only in the case of inexperience and regardless of the degree of fault”.

Logically, then, there is a lack of recommendations and good practices accredited by the scientific community regarding the specific characteristics of Covid 19.

In light of this, it is reasonable to question what conduct is concretely required of the doctor in a context characterised by the novelty of the pathology as well as the lack of scientific studies on the subject.

The specificity of the Covid 19 case will therefore have to be punctually typified by the legislator, and the reference to malpractice will need to indicate all the hypotheses and circumstances that may occur in the context of the diagnosis of the pandemic.

At present, however, since there is a lack of codified clinical-assistance parameters to refer to medical emergencies, and it is difficult to identify the error in the conduct of healthcare professionals, in the event of litigation, it appears essential to turn to specialised lawyers who are up-to-date on the latest developments in the field and who retain the best Court experienced clinical experts to help advance the specific medical malpractice case or where acting in the defence of a medical practitioner who has exercised all reasonable professional care and is not negligent. .

Medical liability is part of an extremely delicate context: the relationship between the health professional and the patient. In this context, choosing the right defence can make all the difference!