State liability for infected blood transfusion Cassazione 29 August 2011, n. 17685

Background In the Sixties and Seventies Italy imported a massive amount of blood and blood products from Latin America, Africa and Asia without any supervision. As a consequence of the scandal, the statute n. 210/1992 provided an indemnity to persons injured by infected blood transfusions and compulsory vaccinations, in order to avoid the proliferation of action for damages. However, since the Nineties the victims of infected blood transfusions brought actions for damages against the State. Judgement n. 11609/2005 of the Supreme Court affirmed the tort liability of the State for faulty omission to comply with the several legal duties to supervise blood-transfusion practise and use of blood products by the local health offices (art. 2043 CC). Nevertheless, several questions remained still open. Among these, I will focus on the following: when could the infection be held as a foreseeable consequence of the transfusion?

Facts The plaintiff contracted hepatitis C and cirrhosis of the liver as a consequence of an infected blood-transfusion given by the hospital of Catania in 1973 Main question Is the Health Ministry liable for damages if the transfusion was given before 1988 (year in which the hepatitis C virus (HCV) was known by the medical science)?

Previous answers I. Cassazione n. 11609/2005 Multiple victims contracted different virus (HBV, HIV, HCV) between 1978 and 1988 There is no State liability if the infected transfusion took place before the virus was known by the medical science (HBV: 1978; HIV: 1985; HCV: 1988)

II. Plenary Session of Cassazione, n. 581/2008 Multiple victims contracted different virus (HBV, HIV, HCV) between 1978 and 1988 (as above) There is State liability for all the infections since 1978: HBV, HIV, HCV are manifestations of the same injury to the health, and are caused by the same harmful event (the infected blood-transfusion). As the causal link is the same for all of them, there should be tort responsibility since 1978, when the hepatitis B was discovered, although the other virus had not been known at that time

What about infections contracted before 1978? Cassazione 29 August 2011, n. 17685 Answer: Even in case that the HCV virus was contracted before 1978, the Health Ministry should be liable for damages Arguments: 1 (Faulty omission). Since 1967 several legal provisions have stated the Health Ministry’s duty to supervise blood-transfusion practise. More generally, a duty to warn or to inform other persons, and to protect their reliance flows from the principle of good faith and social solidarity. 2 (Causation). If the risk the duty to supervise aims top prevent takes place, its violation is presumed to be the cause of the harmful event (risk concretization). Moreover, it is irrelevant whether the infecting virus was not known in 1973, because legal duties to establish whether donors had transaminase alterations existed even before 1978.

Final remarks The present judgement shows a further development of the causation issue, which nowadays appears to be one of the most debated topics in Italian tort law.