Responsabilità sanitaria: interviene la Cassazione con il progetto sanità

In due recenti ordinanze la Terza Sezione della Corte Suprema ha stabilito che le questioni in materia di responsabilità sanitaria debbano avere una trattazione unitaria in apposite udienze Il network legale Consulcesi & Partners plaude all’iniziativa: «Passo fondamentale per la tutela di tutti gli operatori della sanità, i dipendenti pubblici non sempre possono contare sulla tutela legale delle strutture»

Le evoluzioni normative intervenute negli ultimi anni nell’ambito della responsabilità sanitaria hanno delineato un quadro frammentato e soggetto a interpretazioni giurisprudenziali talvolta contraddittorie. Da
ciò nasce la necessità di discutere le controversie legali sull’argomento in apposite udienze dedicate, con una conseguente semplificazione dell’iter, riduzione dei tempi di risoluzione, e una maggiore tutela di tutte le parti in causa. La Terza Sezione della Corte di Cassazione attraverso due recenti ordinanze, la 6426 ed in particolare la 6418 dello scorso 5 marzo, ha avviato quello che viene definito il “Progetto Sanità”. In sostanza, da quanto si evince da tali pronunce, la Cassazione ha stabilito che tutte le questioni che rivestono una particolare importanza e/o criticità in relazione alle più controverse tematiche in materia di responsabilità sanitaria, compresa la definizione dei criteri applicativi delle normative (dalla legge Balduzzi alla Gelli) recentemente intervenute, debbano avere una trattazione unitaria affinché i principi di diritto enunciati risultino coerenti e costanti nel tempo.
Una soluzione che punta a fornire delle linee guida chiare (che siano di ausilio per la magistratura ordinaria) e a mettere ordine nel complesso contenzioso tra medici e pazienti che ogni anno porta a 35mila nuove cause.

Il “Progetto Sanità” inoltre può servire anche da deterrente per eventuali liti temerarie o più generale per quelle controversie che vengono avviate proprio perché vi sono dubbi e incertezze interpretative che lasciano spazio a diverse soluzioni.
L’iniziativa della Terza Sezione della Corte di Cassazione ha raccolto il plauso di Consulcesi & Partners, il network legale che ad inizio febbraio ha proposto l’istituzione dell’Arbitrato della Salute. «Apprezziamo la
sensibilità mostrata dalla Corte rispetto alle tematiche della responsabilità sanitaria e il Progetto Sanità costituisce un passo molto importante per fare chiarezza in un coacervo di enunciati normativi che, soprattutto di recente, hanno acceso dispute dottrinali davvero complesse. Questa chiarezza – afferma Consulcesi & Partners – costituisce un momento fondamentale per la tutela della categoria dei medici e di tutti gli operatori sanitari che da anni difendiamo e che, come dimostrano le statistiche, molto spesso vengono coinvolti in processi lunghi e dispendiosi, in cui l’interpretazione “creativa” e i vuoti normativi sono all’ordine del giorno. In particolare, i dipendenti pubblici non sempre possono contare sulla tutela legale da parte delle
strutture presso le quali lavorano».
«Ad esempio, al momento nonostante a nostro avviso sia chiaro che, nell’ambito dei procedimenti civili, la legge Gelli non possa essere applicata retroattivamente ai fatti avvenuti prima della sua entrata in vigore, vi sono diverse pronunce che hanno ritenuto il contrario. È ben vero – proseguono i legali di Consulcesi & Partners -, che si tratta di pronunce di merito ed in alcuni casi rimaste ancora isolate, ma questo la dice lunga sulle difficoltà che le parti di un procedimento di responsabilità sanitaria si troveranno ad affrontare nel prossimo futuro, in attesa delle auspicate “linee guida” che, con questa iniziativa, il Supremo Collegio vorrà dare al mondo di noi operatori del settore».

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