Fondazione Zoé

Following guidelines is not enough to absolve a doctor from responsability.


prof. Giampaolo Azzoni

A recent sentence by the fourth penal sector of the Supreme Court (n.8254 of 4 March 2011) declared a new (and highly problematic) principle: respecting guidelines is not enough to absolve a doctor from responsibility. The sentence also confirmed another, consolidated priniciple (but one which is just as problematic!): the right to health cannot be subordinate to economic evaluations (of an “accountancy” type, the Court wrote).

Here is a brief account of the case from which the sentence originates. On 9 June 2004, a man hit by a miocardiac heart attack with severe breathing difficulties is brought to the public hospital of Busto Arsizio where he receives a coronaric anglioplasty and a medicated stent is applied. 18 June 2004, after nine days of recovery, as he is asymptomatic, he is discharged with a medical prescription. On the same night, after only a few hours at home, the patient suffers dyspnea and coughing; he arrives in hospital already dead. If the patient had not been discharged, it would have been possible to act quickly and have given him lifesaving treatment.
The medical examination effected by the judiciary in the first instance established that the doctor decided to discharge conforming to guidelines (or medical protocol) which allows the patient to be discharged as far as they have good cardio-circulatory compensation and their clinical picture shows them to be stabilised.

But, according to the Supreme Court’s penal department, conforming to these guidelines is not enough to absolve the doctor who discharged the patient from responsibility.

According to the judges, “a doctor must, with science and conscience, pursue a single end: the care of a patient utilising the diagnostic and therapeutic equipment at their disposal, without being conditioned by requirements of any other nature: by disposition, considerations, valutations or directives which are not pertinent to the task trusted upon them by law and their consequent responsibilities.” The guidelines are nothing more than “an instrument to guarantee economisation in the management of a hospital structure”.

The judgement of the Supreme Court is extremely hard when it counterposes “the economic logic to the logic of health care”: eventual directives with such an end are illegitimate and a doctor is not obliged to respect them, but they must make the most suitable decision the healthcare of the patient. The correctness of a doctor’s behaviour is not, therefore, to be compared to guidelines or current procedure, but to the patient’s overall situation (which is pieced together not only from the type of medical intervention, but also from a detailed medical history).

In my modest opinion, the sentence given by the Supreme Penal Court is certainly positive when it calls the doctor to their ethical duty to act in the patient’s best interests, but it presents several problematic aspects:
• The way in which they have assimilated guidelines to mere cost efficiency criteria without any scientific foundations.
• Consequently, the claim that guidelines are irrelevant to indicate rules of diligence, carefulness, ability in medical practice.
• The way in which they determine alternative standards of behaviour to those in the guideline, as though they appear wholly after and not before medical intervention.
• The characterisation of the right to health as independent from economic valuation in a context in which, as Daniele Callahan has described well, the cost of medecine is rising and, because of this, deciding on just distribution is a drastic problem.

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