Valutazione civilistica del danno da mancata diagnosi prenatale di malformazione fetale

The authors examine the medico-legal issues related to the failure by physicians performing ultrasound scans during pregnancy to inform the parents about detected fetal malformations. The first court verdicts following complaints about misdiagnosis or missed prenatal detection of fetal malformation or genetic disease occurred in the 90s, with particular regard to cases of medical negligence. The biggest doubts arise as to whether the newborn has the right not to be born if not healthy, and whether being born with misdiagnosed or undetected congenital malformation or genetic disease would make the parents eligible for compensation. In 2004, the Italian Corte di Cassazione (Supreme Court), awarded compensation to the parents of financial and biological damages caused by the birth of their diseased daughter, but not to the child (Section III, Verdict n. 14488/2004). More recently, with Verdict n. 16123/06, the Corte di Cassazione confirmed that no such “right not to be born if not healthy” notion exists in Italian law. This is because the presence of fetal malformations does not automatically enable the mother to undergo pregnancy termination procedures. Therefore, since the right “not to be born if not healthy” does not exist, no parent can claim compensation of damages caused by the birth of a diseased child, unless the birth was directly caused by medical negligence.