Supreme Court: Causal Link and Omissive Medical Liability

1. The facts

   The issue arises from a series of appeals to the Supreme Court, culminating in recent decisions concerning deaths or serious injuries following alleged diagnostic delays. According to reports in publications such as Responsabilità Civile e Previdenza, a paradigmatic case involved a patient who died of post-operative septic shock. The heirs claimed the omission of a computed tomography (CT) scan that, if performed promptly, would have allowed the detection of an infectious complication. In the lower courts, both at first instance and on appeal, the claim for damages was dismissed because the expert witnesses could not guarantee that the CT scan would have saved the patient with certainty. The Supreme Court confirmed this approach, ruling that the mere possibility of a different outcome is insufficient to establish civil liability unless it reaches the threshold of prevailing probability. Other aspects of the case, concerning the nature of the healthcare contract, have been analyzed in previous studies.

2. The rules at play

   The legal framework rests on Article 40 of the Criminal Code, applied by analogy to civil law, which establishes that failing to prevent an event that one has a legal duty to prevent is equivalent to causing it. This interacts with Article 1218 of the Civil Code, concerning the facility's contractual liability, and Law no. 24/2017 (Gelli-Bianco Law).

   1. Article 1218 of the Civil Code imposes on the facility the burden of proving that the breach is not attributable to it, but does not exempt it from verifying the causal link.
   2. Article 2236 of the Civil Code limits the healthcare professional's liability in cases of special technical difficulty, although case law tends to restrict its application strictly to complex operational phases.
   3. The Gelli-Bianco Law reaffirms the importance of adhering to good clinical care practices as a benchmark for evaluating conduct. Non-compliance with such protocols constitutes an omission, yet the law still requires that such failure was the determining cause of the damage.

3. What case law says

   The case law of the Supreme Court has clarified that establishing the causal link in cases of omission requires a counterfactual judgment. The judge must hypothesize the performance of the omitted service and ascertain what would have occurred.

   1. The guiding criterion is that of prevailing probability, or more probable than not.
   2. The Court distinguishes between statistical probability, based on abstract data, and logical probability, linked to the evidence of the specific case. If statistics show that a test saves 60% of patients, but the individual's specific conditions suggest an adverse outcome regardless, the causal link is excluded.
   3. In the event of an unknown cause or etiological uncertainty, the risk of non-proof falls on the creditor, namely the patient. Therefore, demonstrating the physician's error is insufficient; it is necessary to prove that such error interrupted a process that would have led to recovery.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Evidentiary strategy: for plaintiff counsel, legal strategy must focus on submitting scientific evidence that exceeds the 50% probability threshold regarding the efficacy of the omitted treatment.
   2. Scrutiny of expert testimony: it is vital to ensure that court-appointed experts do not rely solely on general statistical data, but assess logical probability with reference to the injured party's specific clinical condition.
   3. Alternative claim: if establishing a causal link for personal injury proves difficult, it is advisable to plead in the alternative for loss of chance, which operates under partially distinct evidentiary rules.

References: Articolo 1218 Codice CivileArticolo 2236 Codice CivileArticolo 40 Codice PenaleLegge 8 marzo 2017 n. 24

Editorial oversight: Avv. Federico Papa·ICAMUpdated 2 October 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction