In the light of the sector regulations that have followed one another over time (the so-called Balduzzi law and, then, the so-called Gelli-Bianco law), the appreciation of compliance with the guidelines and good practices – provided that the concrete case is governed by guidelines or, failing that, by good clinical-assistance practices – together with the nature of the fault (generic or specific; due to inexperience, negligence or imprudence), constitute the field of study for establishing the responsibility of the doctor in the criminal sphere.
The Supreme Court sentence n. 18347 of 29 April – 12 May 2021, takes stock of the elements to be taken into consideration in assessing the degree of guilt of the operator of a healthcare profession, providing specific parameters for the relative evaluation.
In particular, in relation to the divergence between the conduct actually held and what was to be expected, it has been observed that, in determining the entity of the censure, both the specific conditions of the agent and the relative degree of specialization may come into play, and the environmental situation in which the professional found himself operating.
As for the existence of the causal nexus in judgments of medical liability, the patient cannot limit himself to affirming in court that he has suffered damage to his health due to the negligence of the doctor, but it will be necessary for the same to demonstrate that, due to the conduct of the doctor, the onset of new pathologies or the aggravation of the pathological situation in progress has occurred.
In the reconstruction of the causal link, on the probative level, what substantially changes between the criminal and civil proceedings is that in the former the rule of proof “beyond a reasonable doubt” applies (cf. Cass. Pen. U.S. no. 30328 of 11 September 2002, Franzese), while in the second the rule of “more probable than not” applies.
On the basis of these principles, the Court of Cassation, with sentence no. 24895 of June 30, 2021, has returned to deal with team medical negligence and causal link. The Court affirms that “the doctor who is called for a specialist consultation has the same professional duties as the doctor who is in charge of the patient” (among others, Criminal Cassation, Section IV, sentence n. 24068 of 15 February 2018), as well as reaffirming the principle established with sentence no. 30328 of 10 July 2002 cited above (Franzese sentence) which excluded any well-founded interpretation, for the purpose of identifying the causal link as a constitutive element of the crime, exclusively or mainly “on statistical data or on probabilistic criteria”.
Principle that the Supreme Court recalled in the sentence under comment, accepting the appeal brought against the sentence with which the Court of Appeal of Milan had sentenced the doctor on duty in an emergency room for the crime of aggravated injury in culpable cooperation (articles 113, 590, 583 paragraph 1 n. 2 of the criminal code) because he was held responsible for the hearing loss reported by a patient suffering from pneumococcal meningitis.
The concrete case faced by the Judges concerns a patient in an emergency room of a hospital in Milan, who accessed the facility showing serious symptoms (persistent fever, confusional state, headache). She was visited by the doctor on duty, on the file she was classified as a “patient in a state of agitation, uncooperative, pyretic” and then subjected to drug therapy, chest X-ray and skull CT scan. At the end of the duty shift, the emergency room doctor entrusted the patient to the incoming doctor suggesting that they contact the neurologist on call, having hypothesized a suspected meningitis. The specialist confirmed the suspicion of meningitis and arranged for the patient to be sent to another hospital with an infectious disease department; informed of the difficulties in hospitalizing the patient due to the lack of beds, he suggested that the doctor in the emergency room carry out blood cultures and subsequent antibiotic therapy. Said prescriptions were not implemented because, in the meantime (a lapse of about three hours), having become free a bed in a specialized hospital, the doctor in the emergency room had arranged for the patient to be transferred to that facility. Arriving at the latter facility, the patient was diagnosed with pneumococcal meningitis with permanent hearing loss.
The Court of Appeal of Milan recognized the penal liability of the doctor on duty in the emergency room (the second intervener) for not having immediately started antibiotic therapy, as prescribed by the guidelines, as well as the liability for civil purposes of the neurologist for not having immediately arranged the antibiotic therapy and for not having checked that the colleague in the emergency room adopted it.
The Supreme College, in reforming the ruling of the Court of Appeal, while judging the conduct of the defendants as “culpable”, judged the assumption that the hearing impairment, as a consequence of the meningitis, was due to the negligent conduct, lacking in motivation, since that the Milanese Territorial Court, instead of following the principle of law established by the Franzese sentence, had based itself on statistical data taken from “retrospective studies” and on apodictic statements such as “timely treatment would have triggered a different causal course and led to the occurrence of an event- milder disease than that actually occurred, with less suffering for the patient” without ascertaining the aetiological link between the negligent conduct and the event.
The Cassation highlighted the insufficiency, the contradictory nature and the uncertainty of the probative evidence on the reconstruction of the causal link; therefore, there is a reasonable doubt, based on the available evidence, on the real conditioning efficacy of the omissive conduct with respect to other factors interacting in the production of the event, such as to lead to the neutralization of the hypothesis proposed by the prosecution and the acquittal outcome of the judgment.
Nulla quaestio, on the other hand, on the non-invocation of the assignment in the hypothesis of multidisciplinary cooperation in the field of medical professional negligence; in fact, if the hypothesis of multidisciplinary cooperation occurs, even if not carried out at the same time, every healthcare professional – including paramedical personnel – is required, in addition to compliance with the standards of diligence and prudence connected to the specific tasks performed, to comply with the obligations deriving from from the convergence of all activities towards the common and single end, without the principle of trust being invoked by the agent who has not observed a precautionary rule on which the negligent conduct of the other is grafted, since his liability persists on the basis to the principle of equivalence of causes, without prejudice to the affirmation of the exclusive effectiveness of the supervening cause, which presents an exceptional and unforeseeable nature.
It follows that every healthcare professional cannot fail to know and evaluate the previous or contextual activity carried out by another colleague, even if a specialist in another discipline, and to check its correctness, if necessary by remedying other people’s errors that are evident and not sectorial , detectable and editable with the help of the common scientific knowledge of the average professional.
Following the annulment with postponement of the sentence made by the Cassation, the referring Judge will have to re-evaluate the theme of the aetiological link between the negligent conducts charged to them and the event attributed to them, bringing it back to that of which in the charge, or the hearing loss that would have caused the patient’s hearing to become permanently impaired.
And of course, the new Judge will not be able to avoid the issue of why he believes that the hearing loss is to be related to the therapeutic delay in the first hospital and not in that of the second, where even the administration of the antibiotic began a few hours after I arrive.