Birth injury compensation in Italy: what the child and the parents can claim

A serious outcome does not, on its own, prove an error. Neonatal hypoxia, the lack of oxygen that can damage the brain, may have causes no treatment could have prevented: placental disease, infections, sudden events. The legal question is a different one: with correct care, would the harm have been avoided or reduced?

The situations that most often lead to a claim are these:

• warning signs on cardiotocography, the trace recording the baby’s heartbeat and the contractions, that are not assessed or not acted upon;
• a test during pregnancy, such as a Doppler scan, showing placental insufficiency without the delivery being brought forward;
• a caesarean section decided or performed too late, or manoeuvres during delivery that do not suit the situation;
• inadequate or late resuscitation of the newborn, or a delayed transfer to neonatal intensive care.

A malformation that was not diagnosed during pregnancy is a different matter: there the birth did not cause the harm, and different rules apply. This article deals with harm caused by the care given during pregnancy, labour and birth.

The case examined by the Third Civil Section (Court of Cassation, Civil Section III, order of 29 December 2025, no. 34661) shows the amounts and the heads of harm involved. According to the parents, in February 2009 a woman in the thirty-fifth week of pregnancy was admitted at 10 a.m. because a Doppler scan showed a serious deterioration of placental function; two traces taken during the day were not reassuring, yet the emergency caesarean was performed only at 4.40 p.m. The baby was born with no heartbeat or breathing and was left with spastic tetraparesis and a 100 per cent civil disability.

The Naples Court upheld the claim and awarded the child €1,364,915 for harm to health and €189,014.90 for loss of earning capacity, and each parent €170,000 for the harm to their relationship with their son. It rejected the care costs, medical expenses and the parents’ lost income because there was no evidence and no assessment by presumption was possible. The Naples Court of Appeal added €865,897.36, putting the child’s future financial loss, for lost earning capacity and future care, at €956,363.15 in total.

The health authority appealed to the Court of Cassation, asking for the child’s future disability pension to be deducted and for the award to be turned into an annuity. The Court declared the appeal inadmissible: these two points, discussed below, are the ones parties argue over most often when the harm is permanent.

The first head is harm to health. For harm caused by healthcare, the law refers to the tables in articles 138 and 139 of the Italian Private Insurance Code (art. 7(4) of Law no. 24 of 2017, the legge Gelli-Bianco on medical liability); for serious injuries the value of each point rises with the percentage of disability and falls with age, so for a newborn with a very high disability the sums are large.

The second head is financial and concerns the future. A child who will never be able to work has lost an earning capacity they never exercised: the court estimates it by presumption, and in the 2025 case the Court of Appeal had put it at over €500,000. Alongside it comes the cost of lifelong care: carers, rehabilitation, equipment, adapting the home and the car. These costs should be estimated by an expert, not inferred from a lump sum.

When the exact amount cannot be proved, the court assesses it on an equitable basis (art. 1226 of the Civil Code), but only if the harm exists and its elements have been proved.

Parents act in two capacities: as the legal representatives of their minor child, for the child’s harm, and in their own right, for the harm they have suffered. Their own harm includes the suffering and the upheaval of family life caused by the child’s severe disability, which in the Naples case was assessed at €170,000 each. It also includes the expenses incurred and lost income, for instance when one parent gives up work to care for the child: these are the heads most often rejected, because they were not documented.

If the baby dies at birth, or the foetus dies before birth because of the doctors’ omissions and delays, the Court of Cassation has made clear that the parents do not lose a «merely potential» relationship (Court of Cassation, Civil Section III, order of 6 October 2025, no. 26826). In that case the traces had shown foetal distress since the evening, but the caesarean was performed only the next morning; the Court of Appeal had awarded the parents half of the minimum values in the tables, treating the relationship as only potential. The Court of Cassation set that judgment aside: the bond with the child already exists during pregnancy, and the loss is a true loss of the family relationship, to be assessed with the Milan tables and giving weight above all to the inner suffering of the mother and the father.

As a rule, future loss is paid as a single sum, calculated on expected life span. For permanent harm the law allows the court to award it instead as a life annuity, with appropriate safeguards (art. 2057 of the Civil Code). In order no. 34661 the Court of Cassation recalled that this is a power of the court, not a duty, even where a shorter life expectancy can be foreseen, and that the annuity must be requested in the trial courts; among the safeguards it mentions annual indexation to price indices, the purchase of government bonds and a single-premium life policy in favour of the injured person.

As for the civil disability pension the child will receive as an adult, the hospital wanted it deducted from the award. The Court of Appeal had refused because the future pension was not certain either to be paid or in its exact amount, and the Court of Cassation confirmed that only on those conditions can the benefit be offset.

Finally, there is a step parents often do not know about: the sums awarded to a minor child are the child’s own assets. Italian law provides that a minor’s capital cannot be collected without the authorisation of the giudice tutelare, the guardianship judge, who decides how it is invested (art. 320 of the Civil Code); any settlement with the hospital or its insurer has to be assessed under the same rule. It is worth planning early how that capital will be managed to cover care and treatment.

The hospital or clinic, public or private, is liable in contract for the conduct of the doctors and midwives it relies on, even if chosen by the patient and not employed by it (art. 7(1) of Law no. 24 of 2017, with arts 1218 and 1228 of the Civil Code); the rule also covers private practice within a public hospital (libera professione intramuraria), such as a birth followed by the mother’s own gynaecologist. The individual doctor, by contrast, is normally liable in tort (art. 7(3) of Law no. 24 of 2017).

In every case the events have to be reconstructed minute by minute: what the traces and tests showed, which decisions the guidelines required and how quickly, what was done and when. Then comes the decisive question: with correct care, would the child have been born without injury, or with lesser injury? This requires a forensic doctor, an obstetrician and, usually, a neonatologist or a paediatric neurologist.

Consider a full-term labour in which the trace shows repeated decelerations from 2 a.m. and the caesarean is decided at 6 a.m. The experts will have to establish when the trace required action, how long it would have taken to deliver the baby, and whether the newborn’s tests are consistent with an injury that occurred during labour or before admission. Whether the delay caused the harm, and to what extent, depends on those answers.

1. Request all the records of both mother and newborn: obstetric and neonatal records, partogram, cardiotocography traces in original or digital form, cord blood tests, ultrasound scans and brain imaging. The hospital’s medical management must provide them within seven days of the request, with any additions within thirty (art. 4(2) of Law no. 24 of 2017).
2. Have the records assessed by forensic doctors and experts in the relevant fields of medicine before alleging an error, to understand whether the causal link can be sustained and for which heads of harm.
3. Document expenses and income from the start: invoices, therapy certificates, payslips and letters of resignation or part-time work of the parent caring for the child.
4. File for a preliminary court-appointed expert report (art. 696-bis of the Code of Civil Procedure) or start mediation, a precondition for any lawsuit (art. 8 of Law no. 24 of 2017). The insurer must take part in the expert procedure and either make an offer or explain why it does not; if no settlement is reached, to preserve the effects of the claim the lawsuit must be filed within ninety days of the filing of the report or of the expiry of the six-month period.

As for time limits, against the hospital the ordinary ten-year limitation period normally applies (art. 2946 of the Civil Code); against the doctor, in tort, five years, unless the longer period for the crime applies (art. 2947). The positions of the child, the mother and the father are not identical, and when the periods start to run has to be checked on the documents, at once. We work in Italian and in English: our assistance in personal injury claims in Italy includes coordinating the experts and the application to the guardianship judge for the minor’s capital.