Compensation for medical mistake in Italy: what is a misdiagnosis?
The word "misdiagnosis" refers to an incorrect diagnosis or to a mistake made by a doctor. Talking about compensation for medical mistake in italy, the concept of misdiagnosis covers the following cases:
- medical mistake: a doctor diagnoses an illness which is different from the specific pathology affecting the patient. Or, alternatively, the doctor diagnoses an illness from which the patient simply doesn't suffer;
- misdiagnosed disease: the doctor is not able to detect the patient's illness;
- delay in diagnosis, which causes a worsening of the patient's health conditions.
It is worth noticing that particular attention must be paid when allocating medical responsibilities, so as to avoid attributing faults to the wrong people, thus risking to irretrievably compromise their professional reputation and to pay substantial litigation costs.
In most cases, the major problem when claiming compensation for misdiagnosis is to ascertain the damage suffered because of the contested medical mistake.
A misdiagnosis anyway, can have serious consequences on a patient's health. For this reason Italian laws recognize legal responsibilities in case of medical error, as well as right to compensation for misdiagnosis.
Possible consequences of a misdiagnosis affect not only the patient's health, but also his/her chances to make informed therapeutic choices.
Doctors are criminally liable for non-diagnosis or misdiagnosis, when medical error results in a damage to the patient's psycho-physical health.
In case of misdiagnosis doctors can be charged with involuntary manslaughter or physical injuries.
It is also worth remembering, anyway, that in matters of defensive medicine, a doctor who is able to demonstrate his/her adherence to the appropriate guidelines cannot be punished, since compliance with guidelines precludes criminal liability.
Compensation for medical mistake in Italy: damages for loss of opportunity in negligence claims
According to recent case-law of the Italian Court of Cassation, medical error should be linked to the loss of opportunity, where the latter is understood as a practical and effective favorable chance to achieve a specific result, that is not as a mere expectation, but as an amount of money, which can be legally and economically assessed. In case of misdiagnosis, the loss of opportunity is attributable to medical malpractice affecting the patient's life quality and expectancy.
The loss of opportunity determines by itself a quantifiable damage compensation.
In such cases, according to recent case-law of the Italian Court of Cassation not only the loss of the opportunity to overcome an illness (loss of chance of survival) but also the loss of the opportunity to lead a better life (which should not be confused with the worsening of the quality of life characterizing existential injuries) were deemed compensable.
Therefore, in cases of non-diagnosis or misdiagnosis which are due to medical negligence, imprudence, or inexperience, patients have right to compensation for the further damages suffered, such as that of loss of opportunity.
Compensation for medical mistakes in Italy: what happens if you are misdiagnosed?
A patient who thinks to have been victim of a medical mistake can claim compensation for medical malpractice.
It is worth remembering that the United Divisions of the Italian Court of Cassation with Orders No. 26972, 26973, 26974. 26975 of 11 November 2008 have estalished the minimum requirements in matters of compensation for medical misdiagnosis.
In particular, the Italian Court of Cassation has set out the following requirements which have to be met in oder to get compensation for the damage sufered:
- the injured interest must have constitutional significancy;
- the infringement must be serious;
- the damage suffered must not be futile, that is it must result in a high degree impairment.
Today Italian laws have introduced, both for doctors and medical facilities, a sort of compulsory insurance, which is aimed at compensating damages in case of medical malpractice: as a result, in case of misdiagnosis patients can bring legal proceedings directly against the insurance company, thus having the chance to get compensation faster.
Before taking action for compensation, anyway, it is always recommended to have a medical forensic examination conducted, so as to ascertain the causal link between medical malpractice and damage suffered. Thereafter, once the causal link is ascertained, an attempt at conciliation must be carried out.
Compensation for the damage suffered must be claimed within 10 years in case of a civil action. Otherwise compensation must be claimed within 3 months of becoming aware of the unlawful action, that is within three months of becoming aware that a pathology was determined by misdiagnosis or medical error.
Compensation for medical mistakes in Italy: cases in Italy and verdicts
With regards to the issue of compensation for medical malpractice, in particular in cases of non-diagnosis or misdiagnosis, both the Italian Court of Cassation and the other degrees of justice have provided the following clarifications:
In matters of medical responsibility, in cases of misdiagnosis, the terminal disease patient's loss of chance of survival (even for a limited period of time), represents an independently compensable good and not simply a loss of the opportunity to live a longer life (Civil Cassation, Section III, No. 16919/2018),
The failure of a diagnostic intervention implies proving the causal link between medical (mal)practice and damage, unless the doctor is able to prove that the same diagnostic intervention implied solving technical problems which posed particular difficulties in applying the criterion of evaluation of guilt described in Article 2236 of the Italian Civil Code.
Criminal liability cannot be ruled out for a doctor whose misdiagnosis prevents a patient to become aware of a cancerous disease, even in cases of unavoidable death, where in counterfactual analysis there is the high possibility that other therapeutic methods or surgery could have extended the patient's lifetime, which, though being limited in time, is always a good of legal relevance (Criminal Cassation, Section IV, Order No. 50975/2017).
In order to determine wether an offense of personal injuries has been committed, it must be considered that the concept of illness does not include all anatomic alterations, but only those resulting in a functional limitation, in a significant disease process or in its aggravation, as well as in a significant functional impairment of the body, even if it is temporary (Criminal Cassation, Section IV, Order No. 22156/2016).
The right to compensation is granted in case of claims against doctors of medical facilities who have been found liable for misdiagnosis of cancer relapse, resulting, even for a short time, in emotional stress of an anxious nature. This is even more true in case of young patients (Court of Palermo, Section III, Order No. 1227/2016).
In order to complete this brief review of the most important Italian rulings in matters of compensation for medical malpractice, it must be pointed out that the Italian Court of Cassation, III Civil Section, with the Order No. 10424 of 15 April 2019 has granted the right to compensation for delayed diagnosis.
In some cases, finally, the right to compensation is granted also for damages from stress and depression caused by a non-existing disease.
Compensation for medical mistakes in Italy: Arnone&Sicomo Law Firm
Arnone&Sicomo Law Firm provides legal assistance in matters of medical liability to all victims of medical malpractice, as well as to doctors accused of misdiagnosis.
Our team of qualified medical-forensic consultants and medical malpractice solicitors pay the greatest attention to every case, in order to avoid unuseful legal action.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.