Medical Liability Defined by Guidelines

Medical Liability Defined by Guidelines

Giovanna Fanci (University of Macerata, Italy)
DOI: 10.4018/978-1-7998-1286-9.ch018

Abstract

Italian law 24/2017 introduces a conformity assessment procedure to a behavioral pattern in case of an adverse occurrence committed by a sanitary professional: this one will be not stated criminally liable if his conduct has been recognized as compliant with guidelines. This chapter analyzes the mechanism provided by Italian Act, which is considered a useful instrument for managing the systemic complexity, but also a “shield” to defend the health profession. Despite some difficulties due to different factors (scientific and technological advance, prevention and control of clinical risk, enormous and sometimes unreliable flow of medical knowledge) the application of standards appears to protect healthy workers from accusations and social tensions by allowing for the actual circumstance. The object of the study will be Italian policies about public health and risk management and most significant judgments of Supreme Court. It will contextualize the damage in a relativistic and interactionist perspective.
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Complexity Of The National Health System And Role Of Guidelines

The institutions of health are characterized by an intrinsic complexity because they accompany the history of individuals in their most delicate phases: life, illness and death (Ferrera, 1997).

No health system can adequately accommodate all assistance requests: an incessant process of change puts a strain on care institutions and, therefore, on the participants, subjecting them to a repeated effort to adapt (Blanchet, Nam, Ramaligam, Pozo Martin, 2017). This instability represents the interpretative cornerstone of the reflections that will be developed in these pages.

A further remarkable aspect is connected to the ethical question of resources allocation: the spending on health services is under rationalization in order to combine financial planning with strategic planning and to implement public policies according to rational criteria; these choices cannot ignore the public purpose of social promotion and investment (Grossman, 1999, 1972; WHO, 2001).

It follows the need to produce a policy able to reconcile two instances: on the one hand, the health system not simply seen as a cost, but as a productive resource and as the main indicator of the level of social development; on the other hand, the urgency of containing its expenditure within the limits of financial availability and in harmony with the budget restrictions indicated by European institutions.

In Italy, health policies employ huge amounts of public and private money in a daily alchemy that brings together very articulated skills and production factors (Colicelli, 2007) and within a framework marked by corporate processes and regionalization. The latter have activated mechanisms of accountability of the administrative action according to methods of control inspired by criteria of efficiency and effectiveness in compliance with the Ministerial LEA (Essential Levels of Assistance)1. They also have required a redefinition of the guiding principles of the decision-making processes aimed at balancing the demand for health services with the rationalization of the financial commitment.

Key Terms in this Chapter

Civil Liability: Liability arising from the breach of a private law obligation and thus falling within the sphere of relations between private individuals; it is a case of unlawful act regulated by art. 2043-2059 of Italian Civil Code.

Non-Contractual Liability: The violation concerns a previous legal constraint (whatever the source from which it derives) or the generic precept of the “neminem laedere” (art. 2043 c.c.). There is a strong tendency for non-contractual liability to be linked solely to the existence of damage, particularly in relation to the pursuit of certain activities.

Inexperience, Imprudence, and Negligence: They are legal categories on which the negligent action is defined. Negligence exists in cases of complacence, lack of attention, while imprudence occurs in cases of hurry, rashness, insufficient consideration. On the other hand, incompetence, contrary to the “expertise”, focuses on what the doctor is able or unable to do or on his experience or inexperience. In essence, incompetence is characterized by the non-observance of the leges artis, that is to say the violation by the healthcare professional of a specialistic and/or technical rule, either due to his ignorance, inability or ineptitude to apply it or to his concrete non-application despite having had to do it.

Contractual Liability: It derives from a default of an obligation and does not disregard the subjective element; it is regulated by the service’s contract.

Sicurezza della cura e gestione del rischio clinico: Patient safety is a structural component of leas and is a key aspect of clinical governance with a view to improving quality. it is one of the overriding aims that the national health service sets. The development of effective interventions is closely related to the understanding of the critical aspects of the organization and the individual limits, asking for a widespread culture to overcome barriers, implementing measures organization and behavior, promoting the analysis of adverse events and collecting the lessons that may derive from these.

Supreme Court or Court of Cassation: It is the supreme body of justice which ensures the correct observance and uniform interpretation of the law, the unity of national objective law, respect for the limits of the different jurisdictions and settles conflicts of jurisdiction and attribution. It has a single seat in Rome and jurisdiction over the whole territory of the Italian republic. It is divided into sections, each composed of a president and four councilors, divided by subject-matter assignments. When a legal question gives rise to a particular jurisprudence dispute, the supreme court shall rule in united chambers called joint section.

Essential Levels of Assistances: The Essential Levels of Assistance (LEA) are the services and works that the national health service is required to provide to all citizens, free of charge or for a participation fee (ticket) with public resources collected through general taxation (taxes). For the list cf. Http://www.salute.gov.it/portale/lea/dettagliocontenutilea.jsp?lingua=italiano&id=4773&area=lea&menu=vuoto .

Negligence: It is the subjective element of the conduct. It integrates when the agent does not behave diligently according to the rule of “good family father”. It can be slight (in italian “generic”) or gross. Latter appearances mostly in cases of professional responsibility. The relevant conduct is due to inexperience, imprudence and negligence. Finally, the negligence may relate to a civil or criminal offence.

Penal Liability: Condition of the person responsible for a criminal conduct carrying a penal offence out.

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