Long-­‐awaited decision no. 25767 of 2015 of the Supreme Court of Cassation sitting en banc faced and resolved two significant jurisprudential conflicts arisen with regard to compensation claims for medical liability, clarifying the principles of the burden of proof incumbent on professionals, as well as the impossibility to acknowledge infants’ autonomous right to sue for damages by virtue of the claimed right not to be born unless healthy.

By decision no. 25676 of 2015, which will certainly be an historic legal precedent on medical liability, the Supreme Court en banc faced and resolved – hopefully, finally – two significant conflicts brought to light in recent case law with regard to two distinct aspects, one concerning the burden of proof and the other concerning the existence of damage for malformed children in cases of wrongful life.

With reference to the first aspect, according to the Supreme Court, in order to acknowledge doctor’s liability for wrong or omitted diagnosis and information such as to causally affect the woman’s right to self-­‐determination, it is necessary that the latter gives evidence of a complex fact; namely it is necessary to prove: (i) the serious abnormality of the unborn baby, (ii) the serious danger for the woman’s psycho-­‐ physical health, (iii) the woman’s impossibility to chose to undergo an abortion as a result of the information omitted by the doctor. As regards such latter requirement, since the evidence is based on a psychic fact, that is to say a psychological condition, an intention, a wilful attitude, the Supreme Court observed that such circumstance cannot be immediately and directly accounted for. Hence, in such event, one can easily trace the existence of the psychic fact on an inductive basis. The Supreme Court en banc clarified that if on the one hand the legislator does not exempt in any way the mother from the burden to prove the serious illness, whether physical or psychical, that justifies the termination of pregnancy – evidence that can be provided pursuant to article 2729 of the Italian Civil Code also by inferring the unknown fact from a known fact, on the basis of statistically recurring correlations as well  as of contingent circumstances -­‐, the professional has the burden to adduce evidence in rebuttal,   namely that in any even the woman would not have undergone an abortion for personal reasons. The determination of the actual damage event originating from the non-­‐exercise of the right to choose, as a consequence of the practitioner’s negligence, must be proven since it is necessary that the situation of serious danger for the physical and psychic health resulted in an actual damage, which can be  established also by court-­‐appointed expert witness.

With reference to the second aspect, which is central, innovative and extremely significant in the decision at issue and which as such would most likely give rise to a doctrinaire debate, the Supreme Court en banc was asked to resolve the judicial conflict on (malformed and/or handicapped) infants’ right to sue for damages based on their own disability claim (iure proprio), consisting in the so called damage for disabled life, against the doctor who failed to make or made a wrong diagnosis (thus preventing the mother from obtaining correct information). The decision at issue is extremely interesting since it deals with such a delicate legal aspect from a totally new perspective that breaks with the past. Indeed the Supreme Court, after having analytically acknowledged the extensive debate on children’s possible right to sue, has reached the conclusion that, as a pure theoretical or dogmatic issue, children should be granted the right to bring compensation claims for the damage, which they deem unfair, caused to them during pregnancy.

So, if in subjective terms the issue has been apparently resolved with regard to the acknowledgement of disabled children’s entitlement to a right and to their right to sue, nonetheless such approach seems to be in open and insurmountable contradiction with the damage-­‐consequence concept provided for by article 1223 of the Italian Civil Code, pursuant to which, in a nutshell, the damage would consist in  having less as a result of the tort.

Therefore, in such perspective it is necessary to compare two alternative situations before and after the tort. In carrying out said comparison in the case at issue, the Supreme Court en banc pinpointed an insuperable contradiction. Indeed in the comparison referred to above the second term of comparison is non-­‐life, resulting from the termination of pregnancy. But non-­‐life cannot be a good of life and, least  of all, retrospectively, the non-­‐destruction of one’s (still developing) life, which is the good par excellence, at the top of the axiological level of the legal system, can be considered as a good for children. It follows, therefore, that an unjust damage would not be acknowledgeable, according to the concept of article 2043 of the Italian Civil Code since one cannot talk about a right not to be born. Indeed, the legal system does not acknowledge the right to non-­‐life. Likewise, such contradiction cannot be considered as overcome by the attempt to extend to the unborn baby the right granted to the  mother and originating from the right to self-­‐determination, a right that, it should be recalled, is granted by law only to the expectant mother. Least of all, according to the Supreme Court en banc, the infant  can be granted the right not to be born if unhealthy, taking into account that if that were the case, the mother’s obligation to undergo an abortion should be symmetrically acknowledged; to the contrary   such an obligation is not established by the legislator. Moreover, should the principle be accepted according to which the unborn baby would be entitled to the right not to be born if unhealthy, right allegedly infringed by the professional’s error in the diagnosis and/or information, one would end up comparing the mistake of the doctor who did not avoid the birth unwanted owing to serious malformations of the foetus with the mistake of the doctor who directly caused it; it is clear that such conclusion – from a juridical and systemic point of view – cannot be shared at all.

Therefore, by reason of the foregoing, the Supreme Court concluded that the argument aimed at overcoming the thesis of liability for the damage suffered by a person not yet born at the time of the doctor’s malpractice is however not sufficient to overcome the impossibility to establish a causal relation between the alleged doctor’s malpractice and the psycho-­‐physical pains that the child is destined to suffer during life.

As said, the decision at issue is going to feed a wide doctrinaire debate, but, in the author’s opinion, the decision  is  characterised  by  a  particular  balance  and  prudence,  from  certain  point  of  views,  even  against the  Supreme  Court’s  trend  in  most  recent  leading  cases.  The  ruling  at  issue  clarifies  that  the  decision  is taken  in  a  framework  heavily  characterised  by  emotional  and  legally  irrelevant  elements  and  influenced by  philosophical  and  ethical  religious  considerations.  In  such  respect,  the  Supreme  Court  en  banc  clearly specified  to  have  excluded  a  political  approach,  limiting  itself  to  the  strict  interpretation  of  the    legislation  in  force.  In  this  perspective,  the  critical  remarks  to  the  thesis  favourable  to  the  admissibility   of  children’s  right  to  compensation  for  damages  “iure  proprio”  is  significant,  since  it  gives  weight  to  the fact  that  “the  acknowledgement  of  compensation  claims  of  disabled  children  against  the  doctor,  even  if revealing an undisputed tension vis-­‐à-­‐vis substantial justice, at last ends up vesting compensation for damages  with  an  improper  vicarial  function,  supplementary  to  social  security  and  social  assistance measures”.