Medical liability: the Supreme Court sets the line on damages for the loss of a newborn child

Damages for the loss of a newborn child, attributable to medical malpractice, must be compensated by valuing the "inner suffering" suffered by the parents, with the consequent application of the tables drawn up by the Court of Milan for the liquidation of non-asset damages that guarantee the predictability and uniformity of judicial liquidations throughout the country. This was established by the Court of Cassation (ordinance no. 26826 of 2025) which annulled the sentence of the Court of Appeal of Naples no. 5062 of 30 November 2022.

The legal case originated from the death of a newborn girl from perinatal asphyxia, caused by a late Caesarean section. In the first instance, the parents had been awarded the minimum provided for by the above-mentioned tables (165,000 euros each). This amount had been halved by the appellate court, which had held that it was "only a potential loss of a parental relationship".

In their appeal in cassation, the parents had invoked the orientation according to which "the damage from the death of the foetus is damage from the loss of the parental relationship" (Court of Cassation, Order No. 26301 of 29 September 2021). This thesis hit the nail on the head. The Supreme Court stated that the death of the foetus, ascribable to medical malpractice, "determines the compensability of the damage from the loss of the parental relationship, which is manifested mainly in terms of intense inner suffering of both the father and (and above all) the mother". Therefore, a different solution would be in conflict with Article 8 of the European Convention on Human Rights, which protects family life, with the constitutional principles of protection of motherhood and life as well as "not in accordance with reality, even before the law". Hence the principle of law formulated by the ordinance in the narrative: "On the subject of compensation for the loss of parental relations, the court of merit is required to apply the Milanese tables, using the individual parameters in the light of the principles on the morphology of the damage from the loss of the fruit of conception, taking into account all the factual circumstances brought before it, also proceeding, whenever possible, to freely interrogate the parties pursuant to article 117 of the code of civil procedure".

Principle that is in line with the prevailing jurisprudence according to which if the judge, in satisfying the need for uniformity of treatment on a national basis, proceeds to equitably liquidate the damages by applying the tables drawn up by the Court of Milan "he may exceed the minimum and maximum limits of the ordinary parameters provided for by said tables, adequately giving reasons for such circumstances and how they have been considered" (Court of Cassation, order no. 22859 of 20 October 2020).