Analysis of Judgment No. 36942 of 2024: Liability for Omission and Causation

Judgment No. 36942 of September 18, 2024, issued by the Court of Cassation, offers an important reflection on the issue of liability for omission, particularly in relation to causation. This decision is part of a complex legal context, where the determination of liability requires a rigorous analysis of omissions and their resulting consequences.

The Principle of Liability for Omission

In criminal liability matters, the Court has clarified that the determination of causation in cases of omission must follow two distinct phases:

• Explanatory Judgment: It must be reconstructed with procedural certainty what happened on a naturalistic level.
• Counterfactual Judgment: It must be assessed whether the omitted duty to act, if performed, could have prevented the harmful event.

The specific case concerned the death of a patient with severe cardiac pathologies, for which the Court excluded the liability of the doctor who had performed a procedure to remove a retained gauze. The reason for this exclusion lies in the fact that proof beyond a reasonable doubt had not been established that the death was attributable to the procedure itself.

Analysis of the Legal Maxim

Liability for omission - Determination - Phases - So-called explanatory judgment - So-called counterfactual judgment - Consequences - Factual circumstances. In terms of causation, the determination, in cases of omission, must be carried out through a preliminary so-called explanatory judgment, concerning the reconstruction, with procedural certainty, of what happened on a naturalistic level, and a subsequent so-called counterfactual, implicative or predictive judgment, aimed at ascertaining whether the omitted duty to act, if performed, could have prevented the event. The negative outcome of the explanatory judgment, even in the presence of culpable conduct, precludes the affirmation of liability. (Factual circumstances relating to involuntary manslaughter, in which the Court deemed unimpeachable the decision that had excluded the etiological link of the death of a patient, suffering from severe cardiac pathologies, to the procedure for the removal of a retained gauze in the intestine, on the grounds that, in the absence of an autopsy, proof had not been established beyond a reasonable doubt that the death resulted from the presence of the gauze or its removal).

Conclusions

Judgment No. 36942 of 2024 not only clarifies the principles of liability for omission but also emphasizes the importance of rigorous assessment based on concrete evidence. In a legal context where decisions can have significant repercussions, it is crucial for legal professionals to understand the phases of evaluating causation, both explanatory and counterfactual. This judgment therefore represents an important step forward in jurisprudence and offers food for thought for future similar cases.