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The Italian Criminal Supreme Court has handed down an interesting judgment on the criminal liability of junior specialist doctors, who – even though they are not wholly independent in the work they do – cannot be considered to be mere executors of the orders given to them by their tutors.

It follows therefrom that, for criminal and civil purposes, they are liable for the activities carried out by them during the course of their traineeship, as has been held by the Italian Criminal Supreme Court in judgment no. 6981 of 2012, with which the latter upheld the term of imprisonment of two months and provisional damages amounting to 50,000.00 Euros to which a former specialist junior doctor of the Rome Polyclinic Hospital had been sentenced.

The defendant – who had agreed to assist a child complaining of problems with her eyesight, headaches and nausea – committed what the judges called a “blatant error” by incorrectly writing up the patient’s ophthalmic diagnosis in her medical records and failing to assess correctly the symptoms of which the child complained (i.e. headaches, waking up at night and vomiting).

This led to a worsening in the patient’s condition (who had a tumor of which no-one had noticed).

The Supreme Court judges, rejecting the defense submitted by the specialist junior doctor to the effect that she could not be held liable pursuant to article 38 of Legislative Decree no. 368/1999, which provides that specialist junior doctors give assistance, while they are being trained, under the supervision of their tutors.

The same Supreme Court judges held that specialist junior doctors do not attend hospitals for the sole purpose of being trained, with the result that their presence cannot be defined as being merely “passive”.

Even though specialist junior doctors cannot independently take decisions in the same way as their tutors do, they are still entitled to a limited degree of independence.

It follows therefrom that the defendant was to be held accountable for the activities directly carried out by her during the course of her work.

In the event that the defendant was not (or considered herself not to be) capable of carrying out such activities, she should have refused to do them, failing which she was held to be accountable for such activities on the basis of the principle that she was at fault for having causing harm to others as a result of performing a task that she was not capable of performing with the necessary degree of diligence (cfr. Judgment No. 6215 handed down by the IVth Section of the Italian Supreme Court on December 10, 2009,).

In any event, specialist junior doctors are advised to take out insurance policies covering them for any civil liability that may be incurred during the course of their professional activities.

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