Surgery

Medical malpractice and dignity: the wrong person pays but lucid analysis is needed

More than 95 per cent of criminal proceedings end with the acquittal of health professionals: an adverse event cannot turn a professional into a potential offender

by Augusto D'Onofrio*

11 March 2026

4' min read

Translated by AI

Versione italiana

4' min read

Translated by AI

Versione italiana

'He who errs pays'. There is no compromise on this. It is a simple, instinctive, apparently unassailable rule: if there is a mistake, there must be a responsibility; if there is damage, there must be a response. It is right, it is proper, and it is a foundation of civilisation.

Precisely for this reason, however, it is worth pausing for a moment and asking ourselves what it really means to 'pay' when we talk about medicine and in particular those specialisations of very high complexity such as neurosurgery, cardiac surgery, transplant surgery, resuscitation, to name but a few. In these areas, due to the very nature of the work, an error can have a dramatic outcome: the death of the patient or a very serious injury. This makes the responsibility of professionals even heavier.

Presumed offences and potential offenders

Obviously I take my cue from the dramatic case of little Domenico. First, however, an essential clarification: no corporatist or caste protection is invoked here, as we unfortunately often hear. No immunity, no 'they cover for each other'. Those who err, if they err, must answer. To patients, to families, to institutions. But answering does not mean accepting that an adverse event automatically turns into an alleged crime and a professional into a potential offender.

There is another reality that the public debate almost always ignores: how much it costs to become truly competent in these areas. It is not enough to be a specialist. You need long, selective, often ruthless training: years in the operating theatre and intensive care, nights, on call, complications, decisions made with time running against you. Holidays taken away from friends and family, sleepless nights thinking about why a complication or a case did not go as hoped. On the other hand, there is the satisfaction of thousands of cases that went well, often corresponding to lives saved or improved. Which nobody talks about, perhaps rightly so, because it is normal for everything to go well, it is normal for there to be hundreds of transplants and thousands of delicate operations successfully performed in Italia every year.

Preventing new cases

So back to 'he who errs pays'. But paying can mean many things: civil liability, compensation, disciplinary courses, revision of protocols, risk management, training, correction of procedures. These are serious, useful tools, often more effective in preventing new mistakes than fear. Because only by analysing adverse events can corrective procedures be put in place to prevent new cases.

Another account is the almost automatic slide to criminal: investigation, trial, public exposure, years suspended between court and wards. But above all, the media trial. Guilty, already convicted by popular jury. And here the issue of dignity opens up, which does not mean impunity or privilege and which cannot and must never be lost by anyone. What is needed is the possibility of being judged for what one has done, in the right way and at the right time, without turning clinical uncertainty into moral guilt and pain into premature condemnation.

Never to be mistaken

But there is another inescapable truth: it is statistically impossible for a professional, in a career spanning more than thirty years, not to make a single mistake. Not because the error is acceptable, but because infallibility does not belong to human biology. To demand it is inhuman, and to make it the moral standard by which to judge those who work every day on the borderline between life and death is a sure way to turn medicine into fear.

At this point it is worth saying it without hypocrisy: everyone makes mistakes. Lawyers make mistakes, and a case is lost. Accountants are wrong, and a company pays heavy consequences. Journalists are wrong, and wrong news hurts people and reputations. Even judges are wrong. But the question is: how many of these mistakes translate into a price that implies a loss of dignity? How many professionals experience the error as a structural risk of criminal exposure, of public branding, of years in suspense, even before the finding? In medicine, especially in the most exposed specialities, this happens with a frequency and automatic severity that has no equivalent. Yet more than 95 per cent of criminal proceedings for medical malpractice end with the dismissal or acquittal of the medical practitioners: are the judges protecting the caste, or perhaps medical error is much less frequent than we think? But the consequences of criminal proceedings, and often even before that, in the media, are devastating on a personal, professional and economic level. The expense of defending oneself in a criminal case is very high, well above the economic possibilities of a hospital doctor, despite possible insurance coverage.

We all pay the price for this culture. If the implicit message becomes 'if you make a mistake you ruin your life', defensive medicine grows, the number of people giving up on difficult cases increases, and vocations to the more complex and risky specialities decrease. Already today there are not many; tomorrow there will be fewer. And many of those who start the path abandon it, the data speak for themselves. And then we will complain about the shortage of specialists, as if it were a fatality, without admitting that we have built it that way too: with a climate where treating means, increasingly, defending oneself.

The conclusion remains the same as it was at the beginning, with no discounts: those who err, if they err, pay. But paying must not mean losing human and professional dignity. Because if we turn care, especially the most complex and most exposed care, into a permanent tribunal, we will not get more security: we will get more fear and a more fragile system. And in the end, as always, it will be the patients who will pay.

*Associate Professor of Cardiac Surgery, Director UOC Cardiac Surgery University of Rome Tor Vergata

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