Stop too many lawsuits against doctors: when the criminal shield is triggered and when not

With the approval by the Council of Ministers, the criminal shield for doctors, already provided for during the period of the Covid pandemic and then extended several times, is preparing to become structural. With an amendment to the Criminal Code, it is envisaged that a doctor who commits offences of injury or manslaughter in the course of his or her work will only be punishable for 'gross negligence', provided that he or she has followed accredited guidelines or good clinical-assistance practices, also taking into account the operational context and the 'scarcity of available human and material resources'.

After so many postponements, the long-awaited criminal shield for white-collar workers has arrived with the go-ahead given by the Council of Ministers to the reform of the health professions: a delegated bill that attempts to redraw the map of incentives and careers for health personnel and that provides for the only immediately operative provision - as soon as the bill becomes law - precisely the measures on the professional liability of health professions. The criminal shield - which, however, the government does not want to call it that because it evokes a 'saving duct', while both criminal liability for gross negligence and obviously civil liability remain in place - already tested during the Covid and so far extended definitively modifies the penal code by adding two new paragraphs to Article 590, but also changes the rules of the 2017 Gelli Bianco law, which had already modified the criminal and civil parts of healthcare liability. On the latter front, the new rules reiterate how healthcare personnel must adhere to good clinical-assistance practices and introduce - as for criminal liability - the assessment of fault in light of contextual factors that may impact on healthcare activity (from staff shortages to emergency cases). Finally, the guidelines are strengthened and defined as 'mandatory'.

Doctors or other medical practitioners who cause injury or manslaughter to their patients will be criminally punishable only in the case of gross negligence, provided they have followed the published guidelines or good clinical and nursing practice for that case. In ascertaining guilt and its degree, judges will also have to take into account a series of 'exempting' factors such as the possible shortage of personnel or equipment, the limited scientific knowledge on that pathology and the available therapies, up to the difficulty of that healthcare intervention perhaps due to the presence of several doctors or the fact of being in an urgent and emergency situation. In particular, the new Article 590 sexies provides that 'when the health professional abides by the guidelines as defined and published in accordance with the law or good clinical care practices, provided that the aforementioned recommendations or good practices are appropriate to the specifics of the concrete case, he is punishable only for gross negligence'. While Article 590 septies provides that the judge 'in ascertaining the fault or the degree thereof, account shall also be taken of the scarcity of available human and material resources, as well as of any organisational deficiencies, when the scarcity and deficiencies are not avoidable by the practitioner of the healthcare activity, the lack limited or contradictory scientific knowledge about the pathology or therapy, the concrete availability of appropriate therapies, the complexity of the pathology or the concrete difficulty of the healthcare activity, the specific role played in the case of multidisciplinary cooperation, as well as the presence of urgent or emergency situations'.