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Prevention and Research

Medical responsibility for nosocomial infections: legal review

Original Article, 25 - 29
doi: 10.11138/PER/2014.3.1.025
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Background: nosocomial infections represent not only a problem for public health – according to data provided by the World Health Organization (WHO) 4.1 million patients in Europe suffer from hospital infections every year – but they also have important legal implications. The Authors analyse this subject in the light of recent judgments that have introduced new elements of objective public liability at a civil level with debasement of the causal link assessment and reversal of the burden of proof on physicians. Consequently, there has been a tightening of judgments that, being increasingly aimed at protecting health, are often in favour of patients. Therefore we are witnessing the progressive weakening of the legal protection of physicians.
Objectives: with this work the Authors, starting from the problems that emerged in recent judgments, point out the judiciary attitude of being increasingly on the side of the patient that is identified as the “weak subject”. They identify possible solutions inspired by the experience of management of medical errors in some European countries, such as the “no fault” system of the Scandinavian countries or the “social insurance” system in force in France. This system provides for the introduction of forms of social insurance mandatory for public structures, allowing physicians not to take any direct and personal responsibility in case of an error with the user-patient; indeed, in this case it is the latter who has the burden of proving the faute (error).
Material and Methods: this research is based on recent judgments of the Civil Cassation Court and the current increase in litigation that the National Health System is facing, due also to media influence.
The Authors illustrate how European countries, through social security systems and mediation, try to control the problem and protect the physician.
Results and Conclusions: finally, the Authors point out that the current increase in litigation along with a progressively more favourable attitude towards the patient, has fostered attitudes of defensive medicine by the physician who has felt more and more defenceless. It is to be hoped that a final regulatory framework that establishes forms of protection for physicians will be achieved, in order to give the best treatment to patients. This should, at the same time, avoid the adoption of defensive behaviour by the physician to reduce the risk of cases involving professional responsibility. Therefore, the Authors suggest the possibility of using new legal means inspired by the European experience.

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    doi: 10.11138/PER/2014.3.1.025