No damages for lack of information on experimental therapy

No compensation for the failure to inform the parents of a child who died from lymphoma. Damages are to be excluded in absence of proof that the father and mother of the child would have chosen a treatment that was still poorly followed instead of the standard one indicated by the guidelines of medical science. The Court of Cassation thus dismissed an appeal seeking compensation for failure to inform them of an alternative route to that practised in the German clinic where the patient was being treated. An option that had a 50% chance of success, despite an unfavourable prognosis, in the face of a new course of treatment on whichcertain data were lacking.

To no avail, the plaintiffs had complained about the behaviour of the white coats who had presented the treatment followed as the only one existing in the world, despite the fact that after a relapse it had also been necessary to proceed with the highly toxic allogenic stem cell transplant, with a consent that would never have been given if full information on the alternative had been provided. For the doctors, however, as for the judges, that chance was not there, and in any case the treatment was not indicated for the little patient.

The Court of Appeal, in fact, after carrying out a comprehensive analysis of the different treatment options available, based on the results of the court-appointed technical expertise, considered the context in which the decisions were made, taking into account both the evolution over time of the information available and the treatment options, as well as scientific publications and press releases on the subject. All of which demonstrate that the structure followed the indications that could have given the best results.

Verification of the partially inadequate fulfilment of the obligation to inform is therefore not sufficient for compensation in the absence of proof "of the causal link between the consequences suffered for the health of the young patient and the correct administration of a curative therapy according to the rules of medical art," reads the judgement, "since the parents did not provide proof of their willingness to refuse the recommended therapy, if they had been adequately informed of the existence of one still in the experimental phase. Moreover, the judges value a 'maxim of experience', according to which it is unlikely that a parent, faced with a proven cure, would rely on one in the study phase.