Loss of Chance in Medical Liability: An Analysis of Cassation Order No. 16326 of 2025

The Italian legal landscape is constantly evolving, and rulings by the Court of Cassation play a fundamental role in defining the boundaries of civil liability, especially in sensitive sectors such as healthcare. Order No. 16326, published on June 17, 2025, fits precisely into this context, offering important clarifications on the compensability of "loss of chance" damages in the medical-surgical field. This decision, presided over by Dr. G. T. and authored by Dr. M. D., addresses a complex and highly topical issue concerning the delicate balance between the negligent conduct of healthcare professionals and the detrimental consequences for the patient.

Context of the Decision: Causation and Medical Malpractice

The issue at the heart of the Order concerns a case of medical liability, where the Court of Appeal of Palermo had previously declared an appeal inadmissible. The Supreme Court found itself examining the compatibility between the denial of a direct causal link between the conduct of healthcare professionals and the patient's death, and the simultaneous recognition of loss of chance damages. Traditionally, to obtain compensation, it is necessary to demonstrate a clear causal link between medical error (negligence, lack of skill, or imprudence) and the damage suffered by the patient. However, in many cases of medical malpractice, establishing a direct and unequivocal link between specific conduct and an adverse outcome (such as death) can be extremely difficult, due to the complexity of pathologies, clinical variables, and scientific uncertainties.

It is precisely here that the concept of "loss of chance" emerges, a category of damage that Italian jurisprudence, also with reference to European principles, has progressively developed to offer protection in situations where it is not possible to prove with certainty that different medical conduct would have avoided the worst outcome, but it is plausible that it would have offered the patient a concrete possibility of a more favorable outcome. Order No. 16325 of 2025 emphasizes how the exclusion of a direct causal link with death does not preclude, but rather becomes the logical premise for investigating the possible identification of a lost chance, correcting the error of the Court of Appeal which had considered such an approach contradictory.

The Notion of Loss of Chance: Beyond Certain Damage

"Loss of chance" is not the final damage (e.g., death or worsening of illness), but the loss of a concrete and appreciable possibility of achieving a better outcome. Imagine a patient who, due to a delayed diagnosis, loses the opportunity to undergo a therapy that would have had, let's say, a 30% chance of success. The damage is not death (which might have occurred anyway), but the loss of that specific probability of survival or improvement. This concept is crucial because it shifts the focus from the certainty of the outcome to probability, making situations otherwise unprotected compensable.

The Supreme Court, with this Order, reiterates and clarifies the requirements for the compensability of loss of chance, clearly distinguishing it from compensation for the final event. It is essential that the lost possibility is not merely hypothetical or remote, but possesses the characteristics of appreciability, seriousness, and consistency. This means that a general hope is not enough; there must have been a concrete and statistically relevant opportunity for a better outcome, thwarted by the negligent conduct of the healthcare professional.

The Supreme Court's Ruling and its Practical Significance

The core of the ruling is contained in its summary, which we reproduce here in full:

In matters of medical liability, compensation for the loss of chance of achieving a more favorable outcome presupposes that the existence of a causal link between the negligent conduct of healthcare professionals and the patient's death is definitively excluded, and that the culpable conduct of the healthcare professional is, instead, linked to the consequence of an uncertain damaging event; in such cases, the possibility of a longer life and/or less suffering will be equitably compensated if – the causal link being proven, according to ordinary civil law criteria, between the conduct and the uncertain event (the lost possibility) – prejudicial consequences are proven that possess the necessary dimension of appreciability, seriousness, and consistency. (In this case, the S.C. censured the appealed judgment for having considered the first-instance judgment contradictory – which, after denying the causal link regarding death, had recognized the loss of chance damage – constituting, on the contrary, such denial the premise for the possible justification of the investigation relating to the possible identification of a lost chance).

This ruling is of fundamental importance because it precisely outlines the boundaries of compensability. Firstly, it clarifies that loss of chance constitutes an independent form of damage, distinct from damage to physical integrity or death. Its necessary premise is the impossibility of establishing a certain causal link between negligence and the more serious final event. Secondly, the Cassation specifies that what must be proven is the causal link between the negligent conduct and the "loss of possibility" itself, understood as an "uncertain damaging event." Finally, it reiterates that this possibility must be "appreciable, serious, and consistent," and compensation will be awarded equitably, as provided for by art. 1226 of the Civil Code, taking into account the value of the lost chance.

In practice, the Court of Cassation censured the Court of Appeal of Palermo for considering the first-instance judgment "contradictory." The latter, after excluding the direct causal link with death, had correctly proceeded to assess the loss of chance. The Supreme Court clarified that the exclusion of the causal link with death is precisely the necessary condition for considering the compensability of loss of chance. It is therefore not a "consolation prize" when the main damage cannot be proven, but compensation for specific and independent damage.

Previous case law (such as No. 28993 of 2019, cited in the normative references) had already paved this way, but Order No. 16326 of 2025 strengthens its scope, providing clear guidance for lower courts and legal practitioners. Among the normative references, we find key articles of the Civil Code such as art. 1218 (contractual liability), art. 1223 (compensation for damages), art. 1226 (equitable assessment of damages), art. 2043 (non-contractual liability), art. 2056 (reference to rules on contractual liability for damage assessment), and art. 2059 (non-pecuniary damages). This normative framework supports the interpretation that loss of chance is compensable damage, both from a pecuniary and non-pecuniary perspective, based on the nature of the legal interest compromised.

• Exclusion of Direct Causation: Compensation for loss of chance applies when a certain causal link between medical negligence and the more serious final event (e.g., death) cannot be proven.
• Causation of the Chance: The causal link between negligent conduct and the loss of a specific favorable opportunity must be proven.
• Appreciability of the Chance: The lost possibility must be concrete, serious, and not merely hypothetical.
• Equitable Compensation: The quantification of damages is done equitably, considering the value of the lost possibility.

Conclusions: A Step Forward in Patient Protection

Order No. 16326 of 2025 by the Court of Cassation represents an important piece in the mosaic of medical liability and patient protection. It clarifies that "loss of chance" is not a fallback, but an independent and compensable prejudice, protecting those situations where medical negligence, even if not the direct cause of an adverse outcome, has deprived the patient of a concrete possibility of a better fate. This ruling serves as a warning to healthcare professionals to act with the utmost diligence and to medical facilities to ensure high standards of care. For patients, it offers greater awareness of their rights and the avenues available to seek justice, even when a direct causal link with the more serious event cannot be fully demonstrated. The protection of the right to health, in all its facets, is thus strengthened through careful and progressive interpretation of the rules on compensation for damages.