- Posted by Massimo Mellaro
It is always good practice, after leaving a hospital where one has been admitted to solve health problems of any nature, to request a copy of the clinical record after discharge, and above all to ensure that it is complete.
However, even if an incomplete record has been consigned, not all is lost if one believes oneself to be a victim of malpractice and wishes to take out a lawsuit to obtain damages. The health operator is obliged to keep the clinical record up to date and correctly compiled, and the latter task comes under the heading of due diligence paid by the operator practising a professional activity, as established in art. 1176 of the Civil Code.
By due diligence is meant the “diligence of a good father”, that is a common term in Italian law.
This is a general criterion to which reference is made in Italian law but the context needs to be specified and established in each case depending on the nature of the obligation and the circumstances in which the subject/debtor acted to fulfill it. We can certainly say that it is a true deontological duty, so by due diligence is meant a particular type of behaviour that must be observed by the subject/debtor in regard to that specific obligation.
Going back to the specific case of the relationship between the patient and the health facility, while it is true that it is up to the patient to demonstrate a causal link between the treatment administered and the deterioration of the health condition, it is also true that even if the clinical record is not complete and correct, a causal link between malpractice on the part of the health staff and the disease will not be automatically excluded.
On the basis of this reasoning, the Supreme Court (“Cassazione”) recently ruled that in the case of an incomplete clinical record the judge may consider the health operator’s liability to be demonstrable if the incorrectly compiled record is a relevant element in the decision. In other words, when the causal link between the conduct of the health operator and the damage suffered by the patient cannot be ascertained due to the incomplete compilation of the medical record, and it is possible that the health operator’s conduct in the abstract could have caused the damage in question. Therefore, in such a situation the judge may presume and believe proven the causal link between the operator’s conduct and the conditions of health of the claimant patient.
As a consequence, it is the duty of the doctor and health facility to demonstrate that no negligence was committed or that the negligence was not the cause of the damage suffered by the patient. For this reason, it can be considered that even an incomplete clinical record may have some evidentiary value in a case of medical malpractice, although a correct formulation of the legal case by the defence lawyer is essential.
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