Infection contracted during surgery. Health professionals are not liable if they follow the protocols.

The Judge in charge of preliminary enquiries (Giudice delle Indagini Preliminari) of the Criminal Court of Cosenza, with order issued on 26 March 2020, following the request of the Public Prosecutor, dismissed the charges against some doctors for their alleged liability deriving from the fact that, during an ophthalmic surgery, a patient contracted an infection.

The technical experts appointed by the Public Prosecutor had ascertained that the patient was a high risk patient (considering her old age and her pre-existing medical conditions) and that the health professionals had followed the guidelines of the Italian Society of Ophthalmology (SOI), the Italian Association of Ophthalmologists (AIMO) and the Italian Association of Cataract and Refractive Surgery (AICCER), considering that they had adopted all the preventive measure provided for therein (disinfection of the surgical field, correct antibiotic prophylaxis, check-up appointments following the surgery, etc.).

In line with the technical experts’ view, the Judge in charge of preliminary enquiries dismissed the charges, excluding any liability of the health professionals.

According to art. 5 of the so-called Gelli Law, health professionals, while carrying out their activities, must comply with the recommendations contained in the guidelines, subject to exceptions in some specific cases.

The guidelines are drafted by means of a constant review of the relevant literature and of experts’ opinions and they are developed by multidisciplinary teams. Such guidelines give an extensive definition of best professional practice, considering that they are based on analysis, appraisals and clarifications of scientific evidence.

Art. 6, par. II, of the so-called Gelli Law, provides that health professionals are not liable “… when the recommendations provided for in the guidelines as defined and published in accordance with the law, or, in the absence of the guidelines, the best clinical-care practices, are complied with, subject to the guidelines’ recommendations being adequate to the specificities of each individual case”.

Reference to the guidelines is made also in art. 7 of the Gelli Law (relating to civil liability of health professionals and facilities). Article 7 provides that the Court, in determining compensation for damages, must consider the conduct of the health professional pursuant to art 5 of the Gelli Law and to Article 590-sexies of the Italian Criminal Code, introduced by art. 6 of the Gelli Law.

This judgment appears to give food for thought in relation to the current emergency due to the outbreak of Coronavirus (COVID-19). Indeed, even in the case a patient contacts the virus during hospitalization, Courts may potentially reach the same conclusions and exclude any liability of the health professionals, in case the latter have complied with the guidelines that will be provided for by law or, in the absence of such guidelines, with the best clinical-care practices.

To this regard, the Higher Institute of Health (ISS) has drafted some “Recommendations for health professionals” to tackle COVID-19 cases. Those directions are also available on the Ministry of Health website.

This Article is for information purposes only and should not be regarded as a legal opinion. For further details and information please Anthony Perotto, Guido Foglia, Michele Zucca or Guglielmo Boursier Niutta.