Failure to acquire informed consent. The compensation for damage to the patient
The Supreme Court, in its recent ruling n. 16503 of 5 July 2017, it has returned to rule on the vexed question of the informed consent of the patient and the physician’s responsibility in case of failure to acquire the same prior to a therapeutic treatment.
The patient, in fact – as we saw in the previous article on the obligations of the doctor prior to medical treatment – has the right to consciously participate in the choice of the therapeutic treatment proposed by the doctor and, therefore, to receive accurate and complete information on the characteristics, methods, the risks, the purposes and effects of the same.
It follows, according to the majority Law (Cass. 16/10/2007, n. 21748; cf. Also: Cass., 8/10/2008, no. 24791), that the lesion of the right guaranteed by the Constitution determines the wrongfulness medical intervention and, therefore, harm themselves compensable in favor of the patient , even in cases where treatment or medical intervention has been successful or is not precisely performed.
The burden of proof
Case law over the last twenty years, has repeatedly stated that the burden of proving the damage inevitably suffered serious patient, but he never clearly determined the object of the damage.
According to a minority orientation (Cass. 13/07/2010, n. 16394), the patient would have the burden of proving the existence of a causal link between the violation of the right to informed consent and damage to health , and the fact that, if it had been properly informed, he would not pay the necessary consent to treatment.
The majority and the most recent trend, however, considers the acquisition of the informed consent of a doctor ‘ independent obligation with respect to therapeutic treatment, not based on the success or failure of the latter.
As a result, the lesion of the patient’s right would result in the doctor’s responsibility to you and the obligation to pay damages in his favor, regardless of the outcome of the treatment.
Damage Event and give accordingly
The Supreme Court, adhering to the orientation majority – first with pronunciations in Joint Sections Nos. 26972 and 26973 of 2008 and recently by ruling no. 16503 of July 5, 2017 – said, however, that the patient, to get the right compensation for damages, must demonstrate the existence of:
- the “damage event” : the failure to capture the informed consent from the doctor, which constitutes ” conduct by omission followed by a conduct of commission “;
- the “damage consequence”: the ‘ actual prejudice (that art. 1223 of the Civil Code indicates that loss of business profits) due to ” personal sphere” of the patient from the failed acquisition of informed consent.
What is the harm suffered by the patient?
The Court held that these must prove in court:
- the successful ” contraction of the freedom to dispose of himself ” psychically and physically;
- (if any) loss of certain parts of the body or the decrease of their functionality due to the intervention / medical treatment;
- the existence and applicability of a therapeutic treatment less invasive for the treatment of their disease.
If the patient tries to trial those circumstances, the activity of the courts will regard – according to the Supreme Court – ” the comparison between the situation in which you came to see the patient outcome of the expression of its consent ill-informed, with that in which they would be found if the health intervention had not taken place . “
In other words, the damage consequence that the judge (if any) will have to liquidate the patient will be to results of the comparison between the latter following the therapeutic treatment of health received (without informed consent) and the state in which he would found without the same treatment.
IN SUMMARY
The patient has the right to consciously participate in the choice of the therapeutic treatment proposed by the doctor and, therefore, to receive accurate and complete information on the characteristics, methods, risks, purpose and effects of the same.
It follows, according to the Law majority that the damage to that law determines the health of the intervention unlawful and, therefore, harm themselves compensable in favor of the patient , even in cases where treatment or medical intervention is gone successful or was not precisely executed.
However, the patient, to get the right compensation for damage, to prove the existence of:
- the “damage event” : the failure to capture the informed consent from the doctor, which constitutes “conduct by omission followed by a conduct of commission”;
- the “damage consequence”: the ‘ actual prejudice caused to ” personal sphere” of the patient from the failed acquisition of informed consent.
If the doctor has prescribed you a medical treatment or surgery without having provided detailed information on the characteristics, methods, risks, purpose and effects of the same, you may be entitled to compensation for damages.
Get in touch with the lawyer. Marco Coscia, compensation specialist from medical liability damages, to obtain specific legal advice.
