Although this is a ruling by the civil civision of the Supreme Court, Marco Farinella, Atty, reports on judgment no. 10050/2022 of the 3rd division concerning the burden of proof and # medical liability.
The matter on which the Supreme Court ruled concerned a miscarriage which occurred following an amniocentesis performed inexpertly and recklessly by a doctor, who, contrary to the instructions imparted by the medical literature, had proceeded to perform three consecutive insertions of the needle into the woman’s uterus. This manoeuvre initially caused the risk of abortion through a loss of amniotic fluid from the vagina and, following three hospitalizations, led to a miscarriage.
Having set it within the area of medical liability where cases of non-fulfilment of professional obligations are concerned, the Court upholds the principle according to which the criterion for dividing the burden of proof is not that which governs liability, but rather that of contractual liability, by virtue of which it is the responsibility of plaintiffs to prove, in addition to the source of their complaint, the existence of a chain of causation, proving that the professional’s conduct was the cause of the alleged damage, while it is the defendant’s responsibility to prove – having failed to adhere to the rules – his or her inability to perform due to non-attributable causes.