Colpa medica e linee guida tra imperizia in eligendo e in executivis

The commented Italian Supreme Court decision provides an opportunity to review the evolution of the legislation on “guidelines” and medical liability, focusing on the jurisprudential principle, now codified by the legislature, according to which it is not sufficient to exclude criminal liability for the formal compliance of the “guidelines” by the doctor, since the latter must verify the adequacy for the specifics of the case. The case in question demonstrates that in practice it is sometimes difficult to distinguish between incompetence in recognizing inadequate guidelines and incompetence in implementing adequate guidelines, and that in causal terms it is critical to show that the doctor’s competent conduct would have effectively prevented the event in order to establish his or her criminal liability.