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Medical malpractice and burden of proof: The defendant has to prove that the duty of care has not been breached

Dismissal on disciplinary grounds: The validity of disciplinary charges brought against an employee is not affected by any mistakes that may have been made by the employer in identifying the disciplinary offence the employee is alleged to have committed (Italian Supreme Court, Employment Law Section, judgment no. 24567/2011)

Italian Supreme Court rules that the relocation of a journalist on the grounds that the latter is incompatible with his workplace is unlawful unless the employer provides evidence of such incompatibility.

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The Italian Supreme Court has once again turned its attention to one of the most hotly debated issues in the last few years: Who has to prove the causal link in medical negligence cases?

Judgment no. 23562/11 has reaffirmed the principle enshrined in United Sections judgment no. 577/88 (and applied by the Court in numerous judgments).

The Supreme Court judges have held that the burden of proof is discharged in accordance with the rules applied in breach of contract cases.

The plaintiff needs to prove, therefore, the contract’s existence, the onset and worsening of the patient’s condition and the defendant’s breach (which could reasonably cause the losses suffered by the patient).

The defendant, on the other hand, has to prove that such breach was not committed or that it did not cause the losses the plaintiff alleges were suffered by the patient.

The placing of the burden of proof on the defendant, however, concerns the link of causation (that is to say the issue of whether losses have been caused and not the quantum of such losses).

This means that the patient must always prove the amount of damages suffered as a result of the defendant’s negligence.

In the case at hand – which concerned the injuries suffered by a child when it was born – the Court of Appeal of Venice ruled that “the patient had to prove: 1) that the specific manner in which the operation was conducted differed, in the case at hand, from those commonly held to be appropriate; 2) that there was – both in the case in which the operation was particularly complex (in the  event that the defendant can prove this, he or she will owe the lesser duty of care provided for under article 2236 c.c.) and in the case in which the operation was of a routine nature – a link of causation between the alleged negligent conduct and the losses which are alleged to have been suffered by the patient”.

The Supreme Court was forced to quash the judgment handed down by the Court of Appeal of Venice and refer the proceedings to the Court of Appeal of Trieste.

L’immagine del post è stata realizzata da cezjaw, rilasciata con licenza cc.

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