Medical liability: the Court of Cassation ‘narrows’ the scope of the guidelines
The judges also emphasise the need for appropriate patient management and constant monitoring in order to detect any deterioration in the patient’s condition at an early stage
Compliance with the guidelines does not exclude the doctor’s liability in the event of diagnostic or therapeutic omissions. Any other approach would be contrary to Article 590-sexies of the Criminal Code (Negligent liability for death or personal injury in the healthcare sector), according to which, where the incident occurred due to professional negligence, criminal liability is excluded when the recommendations set out in the guidelines are followed, provided that they ‘are appropriate to the specific circumstances of the case’. This was established by the Court of Cassation (judgement no. 13274 of 2026), which upheld the judgement by which the Bologna Court of Appeal had convicted several doctors for the death of a patient caused by complications arising from intestinal obstruction
The background
Following two visits to A&E, the patient had been transferred to an accredited hospital with a diagnosis of partial bowel obstruction. The doctor on duty prescribed a conservative treatment plan (fasting, insertion of a rectal tube and an enema) and an X-ray to be carried out two days later. Subsequently, despite the fact that the patient’s clinical presentation suggested a complete bowel obstruction, the doctors who took turns on duty confirmed the treatment plan without prescribing the treatments and diagnostic tests which, according to the Court of Appeal, might have prevented the patient’s death.
The Supreme Court’s judgement
In their appeal to the Court of Cassation, the doctors maintained that they had followed the ‘World Society of Emergency Surgery – Bologna 2013’ Guidelines for the treatment of intestinal adhesions (ASBO), adopting the conservative approach expressly provided for in cases of intestinal sub-occlusion. For this reason, they invoked the defence of non-punishability provided for in Article 590-sexies of the Criminal Code.
An argument that missed the mark. The Court of Cassation, on the one hand, emphasised that the application of the guidelines should have been accompanied by ‘appropriate management of the patient’ and constant monitoring of her clinical progress ‘in order to promptly detect any worsening of symptoms [and] organise, where necessary, her transfer to a higher-level facility’.
On the other hand, he referred to the principle that the guidelines:
