Medical and surgical professionals: cause of non-punishment

In relation to medical liability, the Combined Sections, with ruling dated 21 December 2017, resolved the contrast relating to the scope of application of the cause of non-punishment provided by Art. 590 sexies of the Italian Criminal Code, illustrating the following legal principle:

“The health profession operator is liable, by way of negligence, for death or personal injuries resulting from the exercise of medical-surgical activity:

a) if the event occurred due to negligence (even “slight”) due to imprudence;

b) if the event occurred due to negligence (even “slight”) due to incompetence:

1. in the case of a reproachable error in performing the medical act when the concrete case is not regulated by the recommendations of the guidelines or, failing that, by good clinical-care practice;
2. in the case of a reproachable error in the identification and choice of guidelines or good practices that are not found to be adequate to the specific case, subject to the doctor’s obligation not to apply them when the specific case renders it necessary to deviate from them;

c) if the event occurred due to negligence (only “gross”) due to incompetence in the case of a reproachable error in performance, when the doctor, in that phase, has in any case chosen and respected the guidelines or, failing that, the good practices that are found to be adequate or adapted to the concrete case, also considering the degree of risk to be managed and the specific technical difficulties of the medical act”.