Limitation of professional medical liability in case of emergency medical treatment according to the joint criminal divisions of the Supreme Court of Cassazione

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COD: 06_2019_01_3097 Categorie: ,

Gianluca Montanari Vergallo, Matteo Gulino, Alessandro di Luca, Raffaella Rinaldi

Ann. Ital. Chir., 2019 90, 6

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Judgement no. 8770 released on February 22, 2018 by the joint criminal divisions of the Supreme Court of Cassazione innovatively established that emergency medical conditions represent “problem of special complexity” and, therefore, it is mandatory to apply art. 2236 of the Italian Civil Code. This article provides that health care professional may be convicted only in case of willful misconduct or gross negligence. The authors analyze the jurisprudential evolution of all those elements that are fundamental to assess health care professional liability: a) special complexity of the performance b) relation between imprudence and carelessness c) conditions that may make the healthcare liability gross. The principles approved by the joint criminal division within the above mentioned judgment significantly expand special complexity cases’ range and, therefore, the corresponding liability’s limitation range is extended. Due to the solidity of the reasons on which it is based, this sentence could permanently influence the orientation of the Courts and, therefore, dramatically diminish the risk of professional liability for healthcare staff. There is, however, a lack of clarity in the practical applications of the distinction between unskillfulness, on the one hand, and imprudence and negligence on the other. This event risks to nullify the usefulness of the joint criminal divisions’ intervention. In fact, if the Court considers the health care professional behavior to be imprudent or negligent (rather than unskilled), no limitation of liability can be applied.