A proposal for limited criminal liability in high-accuracy endoscopic sinus surgery.

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A proposal for limited criminal liability in high-accuracy endoscopic sinus surgery.

Acta Otorhinolaryngol Ital. 2017 Feb;37(1):65-71

Authors: Voultsos P, Casini M, Ricci G, Tambone V, Midolo E, Spagnolo AG

Abstract
The aim of the present study is to propose legal reform limiting surgeons' criminal liability in high-accuracy and high-risk surgery such as endoscopic sinus surgery (ESS). The study includes a review of the medical literature, focusing on identifying and examining reasons why ESS carries a very high risk of serious complications related to inaccurate surgical manoeuvers and reviewing British and Italian legal theory and case-law on medical negligence, especially with regard to Italian Law 189/2012 (so called "Balduzzi" Law). It was found that serious complications due to inaccurate surgical manoeuvers may occur in ESS regardless of the skill, experience and prudence/diligence of the surgeon. Subjectivity should be essential to medical negligence, especially regarding high-accuracy surgery. Italian Law 189/2012 represents a good basis for the limitation of criminal liability resulting from inaccurate manoeuvres in high-accuracy surgery such as ESS. It is concluded that ESS surgeons should be relieved of criminal liability in cases of simple/ordinary negligence where guidelines have been observed.

PMID: 28374874 [PubMed - in process]

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