Medical Liability: Burden of Proof and the Decline of Social Contact

1. The fact

   According to reports by outlets such as Responsabilità Civile e Previdenza, the story stems from a specialist surgical procedure voluntarily chosen by a patient to correct a cosmetic defect. Following the operation, the patient complained of a severe worsening of the affected organ's functionality, suing both the clinic and the operating surgeon. The plaintiff argued that the damage was the direct consequence of an incorrect technical choice and insufficient prior information.

   The case reached the Court of Cassation after lower court judges expressed diverging assessments on the nature of the surgeon's liability. Specifically, it was debated whether the professional should be liable under contract law, due to the social contact established with the patient who had specifically chosen him, or under tort law according to the new regulatory framework. The recent rulings of the Supreme Court in 2023 have definitively consolidated the principle of non-retroactivity for events occurring before the 2017 reform.

2. 

   The laws at play

   1. Article 7 of Law 24/2017 (Gelli-Bianco Law) is the pivotal rule: paragraph 1 establishes the contractual nature of the facility's liability, while paragraph 3 qualifies the doctor's as tort liability (under Art. 2043 of the Civil Code), unless a written contract exists between the parties.
   2. Article 1218 of the Civil Code governs liability for non-performance, providing a presumption of fault that favors the creditor of the healthcare service.
   3. Article 2043 of the Civil Code instead imposes the entire burden of proof on the injured party, who must prove intent or negligence, damage, and the causal link.
   4. Articles 40 and 41 of the Criminal Code are applied in civil proceedings to ascertain material causation, i.e., whether the doctor's conduct was the necessary condition for the damaging event.

3. What the jurisprudence says

   Supreme Court jurisprudence has developed the theory of the double causal cycle to resolve evidentiary conflicts. According to this approach, the patient bears the burden of proving material causation, demonstrating that the worsening of the pathology is etiologically attributable to the surgery. Only once this proof is provided does the burden shift to the doctor or the facility, who must demonstrate legal causation, meaning that non-performance was caused by an external, unpredictable, and unavoidable cause.

   The court has also clarified that the Gelli-Bianco Law regime, which transforms the doctor's liability into tort liability, is not retroactive. Therefore, for surgeries performed before its entry into force, the doctrine of professional social contact survives, equating the doctor's liability to contractual liability, with longer statutes of limitations and a lighter burden of proof for the patient.

5. Analysis drafted and verified with edit.legal

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8. What it teaches professionals

   1. Always analyze the date of the tort to determine whether to apply the social contact regime or the Gelli-Bianco Law.
   2. Focus evidentiary activities on proving material causation, without which the assessment of fault becomes irrelevant.
   3. Carefully evaluate the informed consent documentation, as its deficiency shifts the burden of proof regarding legal causation to the doctor.
   4. Clearly distinguish, in defensive pleadings, between the event damage and the consequence damage, correctly outlining the compensation requested.

References: Legge 8 marzo 2017 n. 24Articolo 1218 Codice CivileArticolo 2043 Codice CivileArticolo 1223 Codice CivileArticolo 40 Codice PenaleArticolo 41 Codice Penale

Editorial oversight: Avv. Federico Papa·ICAMUpdated 29 September 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