The criteria for assessing medical negligence after the entry into force of the so-called Balduzzi decree
25-09-2021
The Italian Supreme Court returns to the issue of assessing medical negligence in light of the entry into force of the so-called Balduzzi decree.
Ruling on a case relating to surgery and the alleged absence of preliminary instrumental investigations, the Fourth Criminal Section of the Supreme Court stated that following the introduction, by the so-called Balduzzi decree, of the parameter for evaluating the work of the healthcare professional consisting of guidelines and good clinical-welfare practices, with the most incisive confirmation of this parameter by Law no. 24 of 2017, the terms of the criminal judgment that today impose on the judge, not only a thorough examination of the criminal relevance of the negligent conduct attributable to health care in the light of these parameters but, even before that, an investigation that takes them into account parameters when it is ascertained what would have been the correct alternative behaviour that should have been expected from the professional, according to the counterfactual analysis of the causal traceability to his conduct of the harmful event.
In annulling without postponement the sentence of the territorial Court of Appeal, the Supreme Court reports that it had neglected to indicate which guidelines or, failing that, which good clinical-welfare practices the description of the presumed dutiful behaviour and evaluate the causal link taking into account the salvific behaviour indicated by the aforementioned parameters in relation to the concrete risk that should have been avoided, as well as to what extent the conduct of the healthcare professional had deviated from guidelines or good clinical-welfare practices, thus resulting marred by lack of motivation.
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