Guidelines and medical professional liability: a complex relationship in light of the new legislative updates

The law and legislation evolution of case about the issue of medical professional liability has not been linear in Italy in recent decades. Recently, some innovations has been introduced by the so-called “legge Balduzzi”, in order to clear up the matter. He conducted a review of cases on medical-legal contentious related to a Venetian hospital company for the period from November 2012 to December 2015. The target was to assess if the new regulatory changes have affected the management of the aforementioned contentious. Research object were references in the documentation relating to the dispute: adherence to recommendations contained in the guidelines, the inexperience, to gross negligence. It turned out that, during the tested period, the number of references made to guidelines had increased, reflecting the fact that the Balduzzi Law had started to be integrated into the reasoning on medical liability. Explicit charges of incompetence were reduced, even in cases in which it should have been necessary conclusion of the arguments of the applicant; furthermore, the mention of any gross negligence is almost always avoided. It is not possible to predict future developments. As for negligence and incompetence, guidelines refer, on the one hand, to the ddl 2224 (also known as “ddl Gelli”) — which is currently under discussion in the Senate — and on the other, to a new case-law introduced by the Corte di Cassazione, sez. IV Penale, sentence of 6 June 2016 no. 23283.