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A Journal on Forensic Medicine
Minerva Medicolegale 2010 June;130(2):101-7
Surgical “supplementary” activity: which liability without informed consent?
Gualniera P. 1, Scurria S. 2
1 Dipartimento di Medicina Legale, Università degli Studi di Messina, Messina, Italia
2 Medicina Legale e delle Assicurazioni, Dipartimento di Medicina Legale, Università degli Studi di Messina, Messina, Italia
The absence of a specific legislation about information and consent creates, for law and medical operators, the need of a continuous updating on current case law and doctrine. Moreover, the lack of certainty does not provide healthcare professionals with a pattern of behavior to overcome the conflict between the right to health and the freedom of self-determination of patients. In this regard, the United Sections of the Supreme Court, by ruling January 21, 2009 n. 2437, decided on an “intervention of operative laparoscopy and, without interruption, to salpingectomia which caused the removal of the left tube”, following which an obstetrician surgeon was convicted at first instance for the crime of voluntary personal injury aggravated, according to the accusation of lack of “consent validly given by the patient, informed only of laparoscopy”. The Court stated some principles which, although less severe toward the health professional, do not appear, however, resolutive: that surgeon who during an operation performs activities that have not been proposed to the patient before surgery, but which are essential to the health of the patient, does not commit any crime, even in the absence of rule of necessity. But this only until the surgeon who performs the operating “supplement” respects the lex artis and until the outcome of surgical treatment is quite favorable; instead, the surgeon commits the crime of bodily injury if there are complications, arisen from the same treatment, that may constitute a state of “disease”. Therefore, a special law on the subject must be made.