10.14639/0392-100X-suppl.1-41-2021-17
Discussing border areas in Head and Neck pathologies means addressing diseases’ convergence point of different specialities and professionalisms guided by a common goal: patient health. Starting from the concept of a border, it becomes possible to define the content of a new model of team responsibility: no longer that of the team leader who, as a new Agamemnon, takes on the role of scapegoat when things go wrong, even for errors not directly attributable to his supervision, but that of a primus inter pares, a King Arthur with the Knights of the Round Table, committed like the others, each with his wealth of experience and knowledge, to pursue the same goal. A member of this team assumes the role of spokesperson for diagnostic and therapeutic solutions within a process of acquiring consent that recovers the dimension of verbal and non-verbal communication with the patient. In such a context, in which criminal liability can be challenging to identify based on the principle of in dubio pro reo and civil liability in some countries has already transferred the burden of compensation from the professional to the healthcare facility. In most, no-fault compensation systems appear consistent.
application/xml
1827-675X
1698
en
Antonio Oliva
https://creativecommons.org/licenses/by-nc-nd/4.0
ACTA Otorhinolaryngologica Italica
otorhinolaryngology
Border areas in head and neck pathologies: professional liability in the multidisciplinary approach
Text.Serial.Journal
https://www.actaitalica.it/
41
Annual congress report
2021-05-14
2021-05-10
2021-05-14
2021-05-14
166-172
1
Antonio Oliva
2021/05/14
10.14639/0392-100X-suppl.1-41-2021-17
166
Department of Security and Bioethics, Section of Legal Medicine, Università Cattolica del Sacro Cuore, Rome, Italy; Fondazione Policlinico Universitario “A. Gemelli” IRCCS, Rome, Italy
1827-675X
otorhinolaryngology
172
Border areas in head and neck pathologies: professional liability in the multidisciplinary approach
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ACTA OTORHINOLARYNGOLOGICA ITALICA 2021;41(SUPPL.1):S166-S172; doi: 10.14639/0392-100X-suppl.1-41-2021-17




Border areas in head and neck pathologies:
professional liability in the multidisciplinary approach
Implicazioni medico-legali nel trattamento delle patologie di confine della testa
e del collo
Giuseppe Vetrugno1,2, Fabio De-Giorgio2,3, Vincenzo L. Pascali2,3, Antonio Oliva2,3
1
 Risk Management Unit, Fondazione Policlinico Universitario “A. Gemelli” IRCCS, Rome, Italy; 2 Department of Security and
Bioethics, Section of Legal Medicine, Università Cattolica del Sacro Cuore, Rome, Italy; 3 Fondazione Policlinico Universitario
“A. Gemelli” IRCCS, Rome, Italy


SUMMARY
Discussing border areas in Head and Neck pathologies means addressing diseases’ conver-
gence point of different specialities and professionalisms guided by a common goal: patient
health. Starting from the concept of a border, it becomes possible to define the content of a
new model of team responsibility: no longer that of the team leader who, as a new Agam-
emnon, takes on the role of scapegoat when things go wrong, even for errors not directly
attributable to his supervision, but that of a primus inter pares, a King Arthur with the
Knights of the Round Table, committed like the others, each with his wealth of experience
and knowledge, to pursue the same goal. A member of this team assumes the role of spokes-
person for diagnostic and therapeutic solutions within a process of acquiring consent that
recovers the dimension of verbal and non-verbal communication with the patient. In such a
context, in which criminal liability can be challenging to identify based on the principle of
in dubio pro reo and civil liability in some countries has already transferred the burden of       Received: November 15, 2020
compensation from the professional to the healthcare facility. In most, no-fault compensa-         Accepted: February 8, 2021
tion systems appear consistent.
                                                                                                   Correspondence
KEY WORDS: medical malpractice, multidisciplinary approach, professional liability,                Giuseppe Vetrugno
team liability, otorhinolaryngology                                                                Risk Management Unit, Fondazione Policlinico
                                                                                                   Universitario A. Gemelli IRCCS, Rome, Italy
                                                                                                   E-mail: giuseppe.vetrugno@policlinicogemelli.it
RIASSUNTO
Discutere di zone confine nelle patologie del distretto testa-collo significa affrontare il tema
                                                                                                   Funding
di quelle malattie che costituiscono il punto di convergenza di specialità e professionalità
                                                                                                   None.
differenti guidate da un obiettivo comune: la salute del paziente. Muovendo dal concetto di
confine, diviene possibile definire il contenuto di un nuovo modello della responsabilità di
                                                                                                   Conflict of interest
équipe: non più quello del team leader che, novello Agamennone, assume il ruolo di capro
                                                                                                   The Authors declare no conflict of interest.
espiatorio quando le cose vanno male anche per errori non direttamente riconducibili al
suo operato, ma quello di un primus inter pares, di un Re Artù con i Cavalieri della Tavola
Rotonda, impegnato lui al pari degli altri, ciascuno con il proprio bagaglio di esperienze           How to cite this article: Vetrugno G, De-Giorgio
e conoscenze, a perseguire lo stesso obiettivo. Un componente di questo team assume il               F, Pascali VL, et al. Border areas in head and neck
ruolo di portavoce delle soluzioni diagnostico-terapeutiche all’interno di un processo di            pathologies: professional liability in the multi-
acquisizione del consenso che recuperi la dimensione della comunicazione verbale e non               disciplinary approach. Acta Otorhinolaryngol
                                                                                                     Ital 2021;41(SUPPL.1):S166-S172. https://doi.
verbale con il paziente. In un siffatto contesto, in cui la responsabilità penale può essere di
                                                                                                     org/10.14639/0392-100X-suppl.1-41-2021-17
difficile individuazione in base al principio dell’“in dubio pro reo” e la responsabilità civi-
le in alcuni paesi ha già provveduto a trasferire il peso del risarcimento dal professionista
                                                                                                   © Società Italiana di Otorinolaringoiatria
alla struttura sanitaria, la soluzione più coerente appare quella propria dei sistemi di no        e Chirurgia Cervico-Facciale
fault compensation.
PAROLE CHIAVE: colpa medica, patologie di confine, responsabilità professionale,                                  OPEN ACCESS
responsabilità di équipe, otorinolaringoiatria                                                     This is an open access article distributed in accordance with
                                                                                                   the CC-BY-NC-ND (Creative Commons Attribution-Non-
                                                                                                   Commercial-NoDerivatives 4.0 International) license. The
                                                                                                   article can be used by giving appropriate credit and mentio-
                                                                                                   ning the license, but only for non-commercial purposes and
                                                                                                   only in the original version. For further information: https://
                                                                                                   creativecommons.org/licenses/by-nc-nd/4.0/deed.en




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Introduction: contents and limits                                     Considering pathologies as a border territory in nosograph-
of the concept of “border”                                            ic frameworks means addressing the issue of diseases that
                                                                      attack a complex of well-defined organs located within a
The first book of Rome’s history, Titus Livy, tells the               well-defined area of the body and attract the interests of
legend of Rome’s founding and the epic fratricidal clash              different disciplines. The discussion on these pathologies
between Romulus and Remus. It narrates the tale of Re-                and the responsibilities of caregivers cannot be traced back
mus being killed by Romulus because he dared to climb                 to the usual interpretative schemes that are appropriate for
in mockery a furrow ploughed by his brother, who later                criminal and civil doctrine on health liability. Instead, they
entrusted his memory to posterity with the following ep-              deserve to be addressed using new instruments modelled
itaph: “So from now on, it will happen to anyone else                 on recent legislative contributions. This was first done in
who will pass through my walls”. Centuries later the                  the United Kingdom, followed by France and Italy, to ex-
Swiss philosopher Rousseau wrote, “The first who, hav-                tend the limes of medical action while avoiding exacerbat-
ing fenced off a land, dared to say, ‘This is mine’, and              ing its pitfalls.
who found people so naïve as to believe him, was the true
founder of civil society”. Therefore, the concept of border
                                                                      Pathologies as a border territory in head
is associated with the concept of property, but this only a
part of it. The Romans coined the word limes to refer to              and neck surgery:
the frontier – to the final edge not to be crossed so as not          new horizons and new and old dilemmas
to incur dangers that are difficult to manage. For Emperor            If we wanted to search for the progenitor of the concept of
Augustus, the limes is Teutoburg. In 9 AD, the defeat of              the pathologies as a border territory, it could perhaps be
Varus’ legions at the hands of rebellious Germanic tribes             useful to turn to the notion of focal pathology. The notion
led by the traitor Arminius, once an officer of the Roman             is clearly a didactic reference that is helpful in underlining
auxiliaries but in fact, a leader of the Cherusci insurgents          the general influence of local disease. This is precisely the
caused Caesar Octavian such despair that he advised his               case of a focal odontostomatogenic disease, which affects a
successor Tiberius not to extend the borders of the empire            single dental element, yet its effects reverberate elsewhere
and to stay inside the limes.                                         toward other medical areas, such as nephrology, cardiol-
As reported in the Encyclopedia Britannica, the Latin                 ogy, neurology, and otorhinolaryngology. This is also the
term limes was initially used in agriculture to separate              case with tonsillitis and its long-term repercussions, such
fields cultivated with vineyards, which later became a                as nephrological or cardiological effects.
symbol of the last Roman advanced outpost. The word                   However, in its original meaning, the concept of focal pa-
limes has roots in two possible Indo-European derivation              thology also encompasses the origin of the concept of pa-
lemmas. The first is lik(c)/leik(c), which refers to the con-         thology as a border territory. In the past, a focal pathology
cept of “bending, going sideways”, hence the meaning                  would have involved different teams of caregivers, each
of “oblique” (and therefore, a demarcation line, which is             one acting within their respective fields and their own dis-
almost never straight and clear in fields dedicated to cul-           ciplines’ “boundaries” as rigid interpreters of the diagnos-
tivation). The second is li, which indicates the “flowing”            tic-therapeutic schemes of their own sectors. Today, focal
of a watercourse; a damp place; rich in water (in ancient             pathology engages the same teams with their valuable ex-
Greek: leimon; marsh); turbid; muddy; in a sense related              pertise but obliges them to a shared multidisciplinary ap-
to limus; full of filth; a place difficult to cross; marked by        proach to facilitate early diagnosis and correctly plan sub-
a bad smell emanating from decomposition or from drop-                sequent therapeutic processes.
pings collected there 1; and marked by fear of contract-              The focus is not only the disease that alters the homeostasis
ing contagious diseases, to which historians acknowledge              of the organism and produces harmful effects on contigu-
the contribution given to the strengthening of the borders            ous or even distant organs. It is also its multiplicity of ex-
between states. In its original meaning, in the sense of              pression – even if only potential – that attracts and concen-
limes, a border is not only a border between neighbouring             trates the interests of different specialities, which have been
and culturally homogeneous fields, but also represents the            moving into increasingly smaller anatomical limits, despite
equivalent of a marshy terrain, in which one can become               the fact that these specialities cultivate competencies that
entangled because of its changing characteristics, or the             are not entirely homogeneous.
evolution of a possible battleground between two or more              Therefore, it is becoming increasingly common a multidis-
orders that are eager to assert the right of possession or            ciplinary approach to design and implement the best diag-
expansion.                                                            nostic-therapeutic strategies for different pathologies, such



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as pituitary adenomas; in this specific example, the optimal   Which model of responsibility for the
planning of preoperative diagnosis, management and treat-      interpreters of therapeutic-diagnostic
ment involves a team of endocrinologists, neurosurgeons,
                                                               treatment in pathologies which require
ENT, neuro-ophthalmologists and neuroradiologists; in
order to improve surgical results, minimize complications      a multidisciplinary approach?
and facilitate follow-up 2.                                    Antic responsibilities: from the responsibility of Agamem-
In the preoperative evaluation and in the surgical manage-     non to that of King Arthur and his Knights
ment, the team members are equally important protagonists      The modern idea of responsibility – of Kantian deriva-
even if with different timing and approaches; but it is im-    tion 4 – is to see a subject responding only to actions with
portant underline that this cooperation and co-responsibili-   a programmed and desired result, while we shun the idea
ty does not mean that no boundaries exist. On the contrary,    of having to answer for actions that do not depend on our
the “boundaries”are designed by the skills and areas that      decision and happen in the shadow of our actions 5. In
one single team member would add to achieve the optimal        complex organizations, such as health care facilities, the
result conform to the “personalized” solution in specific      modern idea of responsibility is often put to severe tests.
disease in a specific patient.                                 Patients could be damaged, and tracing the exact cause can
As in the evolution of the limes of the Roman Empire,          be difficult or even impossible in many circumstances.
this simply means that the substantial prohibition of Au-      Homeric heroes of ancient Greece solved this problem in a
gustus to go beyond the border was followed by Had-            radical way. The Homeric hero answered for acts not under
rian’s intuition to “integrate” the limes (and therefore to    his direct control. In addition to paying for what he did,
expand its extension). In the progress of medical knowl-       he also pays for what was not strictly related to his inten-
edge, the time of rigid and solitary sectors has been re-      tions and actions. Agamemnon’s responsibility 4 for hav-
placed by the concept of multidisciplinarity, confronta-       ing stolen the beloved Briseis from Achilles does not end
tion, and dialogue between several “performers” who all        with the dutiful economic compensation assured by Agam-
have highly qualified knowledge. These performers do not       emnon himself towards Achilles, but extends to the whole
throw themselves into virtuosic “solos” but are part of an     Greek army, which was scattered for Achilles’ abandon-
                                                               ment of the battlefield. Agamemnon is forced to make pub-
“orchestra” capable of playing at the right time and con-
                                                               lic amends in front of Achaeans’ assembly to bring Achilles
structing music with which the strings of each individual
                                                               back into battle and reverse the fate of war.
instrument vibrate at their best.
                                                               Agamemnon’s responsibility is very reminiscent of the
An example of this approach can be found in the field of
                                                               responsibility model once attributed to the so-called team
head and neck neoplasms. Once a battleground between
                                                               leader based on the legal principle of “non-reliance”. By
potentially involved disciplines, it has become a refer-
                                                               virtue of his position as coordinator and the most experi-
ence model for other oncological specialities faced with
                                                               enced member (his auctoritas), the team leader must trust
the same dilemmas of optimal treatment in other ana-           neither his collaborators nor other members of the team,
tomical-functional districts. Today, the multidisciplinary     who are reduced to the rank of mere executors of his direc-
approach in the diagnostic-therapeutic strategy of head        tives. Therefore, he responds, solely, to the mistakes pos-
and neck tumours is considered essential and demands           sibly made by them in executing his orders. This is a model
that surgeons, oncologists, radiotherapists, pathologists,     that once seemed to be tailor-made for figures similar to
radiologists together study the history of an individual       the team leader, such as the head of a care unit (in the past
patient and meet to offer the patient a personalized solu-     called the “primary”) or as the health director of a hospital
tion. It is no coincidence that several EU Member-State        company. Such a figure’s “public” role so to speak 6 ended
legislations require the participation of multidiscipli-       up being a pole of attraction for most disparate claims and
nary teams (i.e., tumour boards established in referral        unloading forms of objective responsibility (i.e., of an or-
centres) to offer different specialist skills to guarantee     ganizational nature), which the hermeneutical tools of law
strategic clinical choices for patients with head and neck     had not been able to canalize otherwise.
cancers 3. Not by chance, cancer is a focal pathology. It      The evolution of the law is the result of a very different inter-
settles in on the part of the body but involves the entire     pretation of the concept of “team” and was borrowed from
organism and requires the skills of multiple specialities,     the experience of team games, which has led to the abandon-
which are in constant dialogue and have the sole objec-        ment of the “non-reliance” scheme in favour of the opposite
tive of ensuring that the patient receives coordinated, ef-    principle of “entrustment”. Within a team, each member ful-
fective, and personalized care.                                fils a valuable role and participates with their own skills to



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realize results. In such a scenario, the team leader must trust        ute to the pursuit of the common goal of patient care. This
the skills of his collaborators (colleagues or companions, not         multidisciplinary activity is carried out both synchronously
only those belonging to the same unit or department). The              by professionals of the same or different hierarchical levels
leader must maintain the obligation to supervise the correct-          and diachronically – i.e., in chronologically distinct but al-
ness of others’ choices and conduct and, therefore, the obli-          ways interdependent phases. Interaction in time and space
gation of corrective intervention in the takeover. This is espe-       configures the rule of teamwork. The growth of specialist
cially so when the group is faced with situations of particular        knowledge, technological innovation, the multiplicity of
difficulty. However, this solution continues to be permeated           healthcare figures have caused the paradigm of the single
by the spirit of Agamemnon’s responsibility because it is still        doctor to wane 7.
associated with the need to identify the “guilty party” for the        Various definitions of teams have appeared in the literature,
consequences of an action. Such consequences have so many              but the results are not entirely satisfactory. Three models
“unknown fathers”, and all of them are indoctrinated within            of professional cooperation have been outlined: the ward
a complex organization such as that of a health facility as            team, the surgical team (or team in the strict sense), and
if it were not possible to imagine an alternative to the so-           the team in the broad sense 7. The first is characterized by a
called objective responsibility that would not proceed with            work team that is only apparently monodisciplinary since it
the inevitable identification of a scapegoat, a San Sebastian          is not only composed of doctors with the same specializa-
by Mantegna, who pays for all.                                         tion who work in a hierarchically organized working rela-
And yet, among the models of responsibility forged by the              tionship, but also of other independent professionals, such
law of the ancients, there is one from ancient legendary               as nurses, technicians, rehabilitation therapists, and psy-
tales that seem to be made specifically to define the respon-          chologists. A surgical team involves an activity carried out
sibilities of multidisciplinary groups called to confront for          synchronously by hierarchically organized health workers
the treatment of pathologies as a border territory and more:           with different specialities and skills. Finally, the team in
King Arthur and the Knights of the Round Table. The leg-               a broad sense corresponds to a form of multidisciplinary
end of King Arthur is not only a story of one man’s ability            diachronic cooperation – i.e., not contextual 8.
to draw a sword that is stuck in the rock, but it is above all         In this context, heterogeneous and difficult-to-assimilate
a story of the handover of responsibility from Agamemnon               forms of health cooperation/interaction come together.
to a group. The Round Table is a material representation of            However, beyond all these scholastic definitions, the fact
this passage – a geometric place of plane positions equidis-           remains that it is quite difficult to reconstruct the chain of
tant from a fixed point at the centre of the plane. Every po-          decisions and to weigh the possible roles of each health-
sition of the geometric place is important, and each one of            worker in the determinism of possible damage suffered by
them would not exist without those positions. King Arthur              a patient. In the attempt to trace the person responsible for
sits at the Round Table like any other knight. Most impor-             an action – an action produced by one or more members of
tant of all, it is not King Arthur’s position but the centre of        a multidisciplinary team and the consequent damage – one
the table that makes all others equal because of its inherent          would in fact risk being trapped in the dilemma of the
equidistance to them. In a healthcare organization that aims           “hunting pellet”. In this situation, it is not clear which of
to guarantee the safety of care, the centre position of the            the “hunters” present at a “hunting scene” can be held re-
Round Table belongs to the patient.                                    sponsible for the mistakenly firing the lead shot extracted
Therefore, with the personalization of care, the centrality            from a victim’s body since the victim does not remember
of the patient has become a new benchmark to measure and               anything. From the position of the hunters and ballistics
evaluate a new model of healthcare responsibility to which             data, it is at most possible to conclude that hunter A has a
all team members are called upon. In this model, subjectiv-            55% chance of being the shooter and hunter B has a 45%
ity (i.e. liability) is not attributed to a scapegoat once iden-       chance of being the shooter.
tified in the team leader or director. Instead, the healthcare         In criminal proceedings, the inochentism principle applies
organization itself is a subject that acts equally with team           in such a dilemma. Therefore, in dubio pro reo, an abso-
members.                                                               lutory solution could be found for both hunters, given the
                                                                       failure to exceed the threshold of reasonable doubt cali-
Inapplicability of the team responsibility scheme to the               brated on probabilistic percentages close to certainty and
“board” responsibility model: towards the end of the                   not oscillating around the values of the case. In civil law,
“team responsibility” concept?                                         the guilty principle applies, whereby in dubio pro misero,
A healthcare team can be defined as a group of several spe-            according to the percentage threshold assigned a priori to
cialists and professionals who cooperate and thus contrib-             the probability of guilt, two different conclusions could be



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reached: the attribution of responsibility to both hunters,          pensatory logic present in the system of civil liability but
albeit in a proportionate manner, or the recognition of re-          is certainly alien to modern criminal law anchored in guilt
sponsibility by the person who has exceeded the limit of             for the fact 11.
50% + 1 of such probability 9.                                       And in fact, it has already occurred that the otolaryngolo-
Just try to imagine the consequence of this dilemma in both          gist is recognized as responsible for not having correctly
the work of a multidisciplinary otolaryngological and neuro-         intubated a patient, replacing the anaesthesiologist (also
surgical team that has been recruited to treat a patient with        considered responsible) or the anaesthetist for not having
a pituitary adenoma with a transfenoidal approach resulting          correctly tracheostomized a patient by replacing the oto-
in a liquor fistula. The decision making side could involve a        laryngologist (to which responsibility has also been attrib-
“tumour board” composed of otolaryngologists, radiothera-            uted). Therefore, it is easy to understand how the scheme
pists, oncologists, eidologists, histopathologists, nutritionists,   of team responsibility offers itself to such distortions and
phoniatrists, and rehabilitators to achieve the best strategy of     many others that one would hope to be overcome. Certain-
contrasting a laryngeal neoplasia that has relapsed. The limits      ly, the current application of this scheme with the double
of the team liability model are not restricted to the narrow         profile of protection of the patient’s health and control of
space of the so-called “uncertain causality” 10, but are even        everyone’s actions is not well suited in areas of multidisci-
more evident when one examines the content of the perfor-            plinary commitment.
mance of each member of a multidisciplinary team.                    Consider a tumour board where the discussion on the inter-
In fact, it has been wittily observed that by forcing the con-       pretation of eidological and histopathological data and on
cept of a guarantee position, especially in the criminal field,      the direction that a certain meaning attributed to one cause
for which each health worker is invested with the function           or another could direct the clinical decision. Who would
of guarantor of the health of the patient, the simple un-            be responsible for an interpretation that later turns out not
weighted transposition of a term such as “team” or “multi-           to be in line with the reality of the case examined? Is it
disciplinary team” from the purely medical field to a meta-          the eidologist, the histopathologist, the otolaryngologist,
legal field has occurred with the sole purpose of extending          the radiotherapist, or all of them, and in what proportions?
the horizon of punishability. The team was intended as a             Looking at this team as a modern revision of King Arthur’s
form of cooperation between different medical special-               liability scheme and the Knights of the Round Table, we
ties and various other professions but has become a source           can only conclude that the hermeneutics of team liability
of a mixed guarantee positions. Precisely, one guarantee             should be considered as fading and that this is certainly
position is related to the protection of the patient’s health,       not the area of criminal or civil restorative justice, which
which is in fact the content of the health service required          should provide an appropriate answer to these questions.
of each health care worker, and another extended guarantee
position results from the expansion of the concept of “guar-         A solution to the dilemma of responsibility: the role of the
antor” towards the other team members’ actions 11.                   health care organization as a provider of health care and
In this way, the rationale of the division of tasks is altered,      the legislator’s response in this regard
and the inclination towards mutual trust and respect is erod-        Due to the intuition of those who work in the world of clini-
ed, even though it should be the founding element of a team          cal risk management, a predominant role in the determinism
in the pursuit of a positive goal. It would also undermine           of unfavourable events is attributable to the organizational
the personal nature of criminal responsibility. As medical           context in complex systems such as healthcare organiza-
activity is risky in itself, the errors of others could always       tions 12-14. In fact, it has been estimated that the contribution
be considered predictable. Therefore, each team member               of human action in the determinism of damage to a person
could be required to monitor and supervise the work of oth-          receiving a healthcare service within a structure is equal to
ers. Thus, one would risk being charged to answer for the            20-30% 15. Even when the damage event can be attributed
culpable conduct of third parties caused by an unfortunate           to the human factor, it must not be seen as an expression of
event, in a bellum omnium erga omnes, which indeed is the            the “monad” of the medical staff, but as a consequence of
exact opposite of the concept of teamwork.                           the treatment process that proved to be defective.
Therefore, such an eccentric distortion in applying this             Organizational theories have highlighted how an accusa-
concept of team and guarantee position in favour of the pa-          tory approach directed exclusively at the professional is
tient would always result in an unfavourable outcome be-             certainly reassuring as if they were holding the “smoking
ing attributed to all professionals who were a part of the           gun” of the error that has just occurred, but this conceals or-
treatment. In the criminal field, this introduces a form of          ganizational inefficiencies that are hidden behind the verifi-
joint liability, which could perhaps be digested by the com-         cation of an accident. To believe in human error is certainly



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a relief, at least because it leads to the certainty that it is an       condition of certain severity (permanent impairment of more
error, which can be controlled and charged (with guiltiness              than 24%) has occurred, which grants the victim access to
attributed) to a person. However, it prevents us from di-                compensation from a special compensation fund. It is a solu-
rectly approaching the system to learn about the shortcom-               tion borrowed from experiences in New Zealand, where for
ings and imperfections that could cause the same adverse                 some time now, not only has the weapon of criminal judge-
events to occur again. The culpability approach has the sole             ment been inoperative, but a system of no-fault compensa-
purpose of shifting the responsibility for the performance               tion for the damage suffered has also been in place, allowing
failure in to an individual or several professionals and in              the patient to quickly obtain adequate remuneration.
fact might benefit the same flawed structure by deferring its            The objective of ensuring the safety of care is achieved by
reorganization, which is usually very demanding from an                  balancing the different needs: the protection of the victim,
economic point of view 16,17.                                            who deserves to be compensated for additional damage
It is no coincidence that the so-called health structure respon-         suffered, and the protection of the professional, which is
sible for the “organizational shortcomings” was invented                 the last link in a system that deserves to be reviewed and
some time ago in legal literature 12. The term was created to            perfected 14. In a system set up in this way, the health care
emphasize the role of the structure’s organizational activity            professional confidentially reports system dysfunctions
causing an adverse event but from an equally blameworthy                 worthy of being studied and corrected, and the damaged
perspective. The aim was splitting up the damage caused by               patient receives rapid compensation for the discomfort or
organizational deficit into the causal contribution attribut-            impairment suffered. The structure promotes a constant
able to the collective action of the structure and the damage            policy to improve the quality and safety of care, there is
attributable to the individual health professional. Thus, this           no need to hunt for the scapegoat, and everyone cooperates
contributes exclusively to shift the focus from the health pro-          to keep the interest of the patient’s health at the centre of
fessional – the last causal link in a complex organizational             attention. Therefore, it can be well understood how such a
process – to the institutionally delegated person in charge of           system is the best organizational and regulatory response to
the management choices capable of directing and guiding                  the dilemma of responsibility in the multidisciplinary ap-
the organization of activities within the structures 12.                 proach because it is the most functional tool to maintain
Following this path, the common law systems of the UK/                   the climate of effective collaboration, which is essential to
USA 18 and Italian legislators have developed liability re-              the integration of several professional skills involved to ad-
forms in an attempt to divert the claims of harmed patients              dress focal pathologies in their broadest sense.
from the liability of the professional to the liability of the
healthcare facility 19. In the UK, the system has been in                Information to the patient at the time
place since 1995 following the institution of the National
                                                                         of “boards”: who is responsible,
Health Service Litigation Authority to administer the fund
established by the National Health Service to assist Health              and what are the repercussions?
Service organizations and bodies sharing costs arising from              For years, the subject of informed consent has been the
negligence, health care, and professional liability in gen-              matter of dedicated conference sessions, and it has been
eral. In Italy, after a draft reform was carried out in 2012,            debated whether the correct form of this legal principle
it required a new law in 2017, which attempted to overturn               should be written or verbal. Among the supporters of the
the logic of the criminal sphere, proclaiming that events due            written form are minimalists, who are inclined to mini-
to errors of any degree are not punishable as long as they               mize communicating information and receiving consent,
occur in the context of activities carried out in compliance             as well as rigorists, who are inclined towards the prepa-
with the recommendations contained in codified guidelines                ration of detailed forms. When COVID-19 appeared, the
or good clinical care practices 20. In the civil sphere, it es-          verbal form came back into vogue, but mostly only for
tablished a shift of the burden of compensation from health              precautionary reasons because of the possibility that the
workers to public and private health care companies 14.                  virus could remain active on surfaces for several hours/
In France, the responsibility of the structure in the occur-             days. It has acted as a stimulus for the development of
rence of adverse events related to assistance has been con-              new ways of recording informed consent (i.e., audio-
templated since the introduction of the law dated 4th March              video recordings) 21. Therefore, it is clear that new ways
2002. The advantage of the French system essentially lies in             of communication need to be created. And this is even
the fact that the victim of an adverse health event is exempt-           more valid for multidisciplinary contexts, such as boards,
ed from the burden of proof when the event has occurred                  where many actors and authors of a diagnostic-therapeu-
during or following risky treatment and when a disabling                 tic choice refer to the patient.



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