Responsabilità civile del medico: responsabilità da inadempimento o probatio diabolica? Il punto di vista della III Sezione Civile della Corte di Cassazione nella sentenza n° 12264 del 30.05.2014.

Abstract

[Medical Liability: liability by frustration or probatio diabolica? The point of view of the3rd Civil Section of the Supreme Court in the judgment n. 12264 of the 30.05.2014]

The Authors analyze, under a judicial and medico-legal profile, the judgment n. 12264 of the 30.05.2014 of the 3rd Civil Section of the Supreme Court. In this judgment, they examine the omissive behavior by a physician of an ASL who, for the entire length of the pregnancy and having performed the proper diagnostic tests, failed to notice foetal malformations which resulted in birth defects such as agenesis of two fingers and femoral hypoplasia.

The verdict brought a new criterion for distributing the evidential responsibilities of the concerning parties, the expecting mother and the physician, establishing that «it’s the accusing party’s responsibility to allege and demonstrate, if in fact informed of the malformations of the conceived foetus, she would have interrupted the pregnancy, since such proof can’t be deduced only by the fact of requesting to be subjected to examinations with the purpose to verify the existence of eventual foetal anomalies».