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A Journal on Anesthesiology, Resuscitation, Analgesia and Intensive Care
Minerva Anestesiologica 2000 June;66(6):479-85
Guidelines in clinical practice. Legal considerations
Tribunale di Treviso
The paper analyses the role and implications of the application of these guidelines from a legal point of view. After an introduction based on the legal concepts of the causal nexus and guilt in jurisdiction, the authors highlight the main arcas of influence that these guidelines can have on evaluations of a torensic nature. In jurisdictional terms, the first step in the evaluation of medical conduct is to reconstruct the causal nexus between the doctor’s conduct (active or omissive) and the injury/death in question. The identification of the causal nexus is based on the application of the laws of probability according to which it is possible to affirm, with a reasonable margin of logical and rational plausibility, that a given conduct is the causal condition of a particular harmful event. With this in mind, the guidelines assume the role of law of probability in the sense that their adoption, depending on an evaluation of the probabilistic regularity of the causal series, would have prevented the occurrence of the injury/death that is the object of the legal inquiry. Another essential step in the jurisdictional process, is the evaluation of guilt. Bearing in mind that the evaluation of guilt is by definition linked not to the actual doctor in question, but to an abstract model of a doctor and namely the knowledge and skills that a doctor is expected to possess, it can be seen that the adoption of these guidelines may facilitate this evaluation. The application of the guidelines would represent compliance with the ordinary conditions of knowledge and skill expected of a doctor to which should be logically added the need for an adequate motivation for any deviation from the indications expressed in the guidelines. In conclusion, the main influences of these guidelines for the doctor-patient relationship are evaluatcd, together with the role that these guidelines may play in terms of patient information and the informed consent given by the latter.