by Lorenzo Labruna
The evolution of the therapeutic approach towards the so-called “integrative medicine” has led to the progressive enhancement of the information duties of the doctor for a more “patient-centered care”.
With the recent sentence n. 7248 of 23 March 2018, the Italian Corte di Cassazione has confirmed that the violation of these information duties could be an autonomous source of liability for non-pecuniary damages for the breach of the right of self-determination. In that case of judgement, a patient was asking his gynecologist the compensation of the damages suffered for the birth of his son with fetal distress and consequent anoxia from childbirth, due to the administration of a pharmacological therapy without informed consent.
The Appeal Court, notwithstanding the ascertainment of the absence of informed consent, rejected the indemnifiability of the aforementioned omission itself and it excluded the causal link between the conduct of the gynecologist and the pathologies of the infant.
Vice versa, the Judge of legitimacy had recognized the autonomous relevance – for liability purposes – of the information duty’s breach of the doctor. According to the Court, the absence of a free informed consent may cause two kinds of damages. The first revolves around the negative consequences of the medical procedure. These are indemnifiable by proving that the patient – had he correctly been informed beforehand – would have refused the therapy. Otherwise, in the second kind of damage the detriment refers to the violation of the right of self-determination itself. In this case, the compensation is independent from consequences of the therapy, but it’s sufficient that the violation of the information duty has compressed the freedom of choice about the therapy of the patient (Cass. 24074/17 e 16503/17).
More precisely, the patient has the right to know, with the necessary and reasonable precision, the consequences of the medical intervention in order to prepare himself to face them with an increased awareness. It is thus possible to identify a damage not only when the absence of information is linked to a negative outcome of the therapy, but also when the omission of the doctor itself didn’t let the patient properly assess the consequences and the risks of the medical intervention.