Medical Liability: Commentary on Ordinance No. 11137 of 2024 on Damage Assessment

Recently, the Court of Cassation issued Ordinance No. 11137 of April 24, 2024, providing important clarifications on medical liability. This ruling addresses the delicate issue of damage assessment in cases of incorrect medical treatment, particularly when the injury suffered by the patient can be remedied through subsequent surgery. The decision is crucial for understanding how current legislation, specifically Article 1227, paragraph 2, of the Italian Civil Code (c.c.), applies in the context of healthcare professionals' liability.

Legal Context

Under Italian law, medical liability is governed by a set of rules aimed at protecting the patient in case of damages arising from professional errors. Article 1227, paragraph 2, c.c. stipulates that the injured party must avoid aggravating the damage. However, in Ordinance No. 11137, the Court excluded the applicability of this rule when the damage can be corrected through a subsequent intervention. This aspect is fundamental, as it prompts reflection on the duty to minimize damage and on objective good faith.

The Ruling's Principle

In general. In matters of medical liability, where an injury resulting from incorrect treatment is remediable by subsequent surgery, the rule set forth in Article 1227, paragraph 2, c.c. is not applicable. This is because applying it would impose a duty on the injured party that goes beyond the obligation to avoid aggravating the damage, the basis of which lies in the principle of objective good faith, specifically in the tenet of safeguarding the counterparty's interests within the limits of one's own personal or economic sacrifice. (In application of this principle, the Supreme Court found no fault with the judgment that had dismissed the tortfeasor's claim for damages to be assessed at the value of the lesser biological damage that would have remained following surgical procedures to partially correct the sequelae of incorrect breast and abdominal surgery, plus the cost of such procedures).

This principle clarifies that the patient is not obligated to undergo further interventions to avoid aggravating the damage, thus establishing an important legal precedent. The Court emphasized that imposing such an obligation on the injured party would constitute a violation of the principle of objective good faith, which should also protect the counterparty's interests.

Impacts and Final Considerations

The consequences of this ruling are significant for both patients and healthcare professionals. On one hand, patients can feel more protected in cases of medical errors, knowing they are not obliged to undergo further procedures to obtain compensation. On the other hand, healthcare professionals must be aware that their liability is not limited to the provision of services but must also consider the long-term consequences of their actions.

In conclusion, Ordinance No. 11137 of 2024 represents a significant step towards greater patient protection and clarifies important aspects of medical liability. It is essential for all stakeholders in the healthcare sector to understand the importance of this ruling and its implications in the daily practice of their profession.