http://childhealthsafety.wordpress.com/2012/05/23/mmr-causes-autism-italian-court-translation/
Italian Republic
On behalf of the Italian people
The Ordinary Court of Rimini
Civil Division, Labour Section
With a single judge presiding in the person of Judge Lucius ARDIGO’ pronounces
JUDGMENT
in the civil case, with the ritual of work, registered as N.474 \ 10 RGL brought forward by:
XXXX and XXXX on their own behalf and as parents exercising parental authority in the case of their son, a minor xxxx (child)
represented and defended by the lawyer. VENTALORO LUCA with an address for service in Viale Principe Amedeo 12 47900 RIMIN at the Chambers of. VENTALORO LUCA
-APPLICANT-
AGAINST
MINISTRY OF HEALTH (CF80242255589), with the ADVOCACY of the lawyer DISTRICT STATE ADVOCATE electively domiciled in Via Guido Reni 4 40125 BOLOGNA at the Chambers of. DISTRICT STATE ADVOCATE
-AGREED-
Concerning
Compensation under Article 2, paragraph 1, of Law no. 210, 1992
GROUNDS FOR DECISION
By application filed 8 \ 06 \ 2012 XXXX and XXXX on behalf of themselves and in their capacity as parents exercising parental authority over the child xxxx agreed to press charges against the Ministry of Health, applying that they be ordered to pay compensation for irreversible damages from complications caused by compulsory vaccination
The basis for the application stated that on 26 \ 03 \ 2004 the minor (child) xxxx was subjected to prophylactic trivalent MMR at the AUSL (Local Health Authority) of Riccione.
The same daily worrying symptoms arose daily (diarrhoea, nervousness) between 2004 and 2005. xxxx (the child) experienced signs of serious psychological and physical discomfort as far as the date of 31 \ 08 \ 2007 when the recognition took place that he was invalided totally and permanently to a level of 100%
Only on the date 27 \ 06 \ 2008, did the specialist Dr. Niglio attest as to how the reported damages to the minor (child) were attributable to the vaccination carried out, this theory was definitively confirmed on the date 25 \ 07 \ 2009 by the specialist Dr. MONTANARI.
Therefore on the date 28 \ 04 \ 2008 the parents, the applicants, submitted an application for verification of eligibility requirements for the compensation provided for the benefit of those harmed by the irreversible complications due to mandatory, vaccinations, but on the date 13 \ 10 \ 2008 the Medical Hospital Commission refused the application because the MMR vaccination did not turn out to be compulsory by law or ordinance of Health Authority.
The case, informed through the production of documents and the testing of medical-legal advice, was discussed at today’s public hearing as a consent decree.
In a preliminary ruling it was asserted that the the capacity to be sued of the Ministry was exempted under the provisions of Article D of .114> L.vo No. 112 of 1998, regarding the contribution to the Region of the functions and administrative tasks relating to Health, Article 123. This same decree explicitly recognized the retention by the State of the duties relating to appeals (to be understood both as administrative and judicial, in the absence of normative distinction) for the payment of compensation in favour of those harmed by the irreversible complications due to vaccinations, compulsory medical treatment and the like.
The latter theory shared by the most recent and prevailing case law of the Supreme Court of Cassation (Highest Court of Appeal) which has clarified how in the case of especially the capacity to be sued, it is exclusively the responsibility of the Ministry of Health (see most recently Cass. Sec. L n. 29311 of 28 \ 12 \ 2011 Rv. 620379; Compliant same section 13 \ 10 \ 2009 n. 21702, n.21703, n.21704 of 3 \ 11 \ 2009 n. 23216, n. 23217, by 5 \ 11 \ 2009 n. 23434, the 6 \ 11 \ 2009 n. 23588).
In point of law it is considered that the fact that the alleged permanent impairment of physical or mental integrity is due to a compulsory vaccination cannot be an impediment to the recognition of compensation required.
Referred to herein and in fact ,to the judgment of the Constitutional Court. 27 \ 1998 and 423 \ 2000 that it was declared unconstitutional by violation of Articles 2 and 32 Constitution, Article 1, paragraph 1, I. February 25, 1992 No 210 (Compensation for those harmed by complications of an irreversible type because of mandatory vaccination, blood transfusion and the administration of blood products), in so far as it provided no entitlement to compensation under the conditions specified therein, of those who were subjected to non-compulsory vaccinations against Hepatitis B and Poliomyelitis as a result of campaigns by the Health Authority to legally promote the dissemination of these vaccinations.
The aforementioned vaccinations, like the trivalent MMR vaccination in question, had been strongly encouraged by the state while not imposing a legal obligation: it is not constitutionally permissible in the light of Articles 2:32 of the Constitution, to require that the individual puts his own health at risk for the collective interest, without collective being willing to share, if you will, the weight of the negative consequences, there is no reason to differentiate from point of view of the aforesaid principle, the case where medical treatment is required by statute and that in which it is according to a law promoted by public authorities, in view of its widespread distribution in society.
The medicolegal and auxilary medicolegal assessments must be conducted according to their merits, which, on the basis of an in depth examination of the case in the light of the specialist literature to date, has conclusively established that the young child is suffering from AUTISTIC DISORDER ASSOCIATED WITH MEDIUM COGNITIVE DELAY ascribed with reasonable scientific probability due to the administration of the vaccine MMR occurring on the date 263\2004 at the ALS of Riccione
It should also be acknowledged that the auxiliary evaluation pursuant to the Medical Commission has expressed the view that there is a permanent impairment of physical and mental integrity established, ascribed to the first category of Table A ,attached to the DPR 30 \ 12 \ 81 n.834.
As for the ascertainment, on the part of the parents, of the actual knowledge of the cause of disability, it should be noted that in none of the medical records examined was the clinical picture established definitely as post-vaccine, in the sense of, caused by inoculation of the vaccine, and that the causal relationship is indicated for the first time only in the medical report on 27 \ 06 \ 2008 of the specialist Dr. Niglio.
In particular, we should highlight as the starting point, not reckoned in the knowledge of the diagnosis, or by the mere suspicion of an origin from compulsory vaccination, but from the moment when, on the basis of medical records, the claimant is found to have had knowledge of the damage, that awareness of the aetiological relationship between irreversible injury (including ascribability table) and the cause from vaccination (which entitles you to compensation).
As reiterated by the Supreme Court in the analogous issue of knowledge of occupational disease indemnification, it is not sufficient that the employee is informed of the mere professional/ occupational origin of the disease but it is also necessary that the same is aware of the importance of sequelae so as to provide an impairment higher than threshold percentage fixed for the recognition of pension entitlement (see in this sense civil Cassation section. Lav., April 3, 1993, No. 4031, in Riv. In fort. and mal. Prof. in 1993, II, 111; Supreme Court as well as civil sez. Lav., January 8, 1996, n. 63 INAIL Bulgari c rv 495 260)
Therefore, a deadline of two years from knowledge of the cause of the damage is enforced(Article 3 of Law no. 210, 1992), being the permanent impairment of psycho-physical integrity due to 1 / \ category in Table A attached to the DPR 30 \ 12 \ 81 n.834, and should be entitled to compensation provided for under Articles 1 and 2 of Law 210 \ 1992 comprised therein for the payment of the One off payment of Article 2 paragraph 2 of that law.
Under the combined provision in the Article 429 c.p.c. and 16. paragraph 6 of Law 30 December 1991, No. 412, the amount due in respect of statutory interest on pension claims is used to offset any amounts payable for the restoration of greater damages for the diminished value of the claim, which is why an adjustment for inflation becomes operational only for periods of time which the amount of interest is not sufficient to cover the full damage due to devaluation.
The court costs are settled on a payment formula accepted by the Ministry according to the general criterion of negative outcomes.
For this same reason they are definitively accepted by the Ministry as are the costs of CTU, to the extent already settled by a separate decree.
FOR THESE REASONS
THE ORDINARY COURT OF RIMINI
with a single judge presiding in the function of judge of the work
pronouncing definitively on the application brought by XXXX and XXXX as parents exercising parental authority over the child xxxx with an application lodged on 8 \ 06 \ 2012, dismissing all other claims, objections or inferences, will thus provide, in adversarial proceedings with the Ministry of Health:
1) I verify that (child) xxxx has been irreversibly damaged by complications caused by vaccination (prophylaxis trivalent MMR) with a right to compensation referred to in Articles 1 and 2 of Law no. 210, 1992, ( lifetime pension backdated for fifteen years), I order the Ministry of Health in the person of the Minister in charge to pay to (child) xxxx the compensation provided for by Articles 1 and 2 of Law 210/1992 including the payment of the One off payment of Article 2 paragraph 2 of that Act (for the arrears plus interest accrued in so far as legally possible and the second monetary revaluation ISTAT indexes, as required by law for payment of the application);
1. I Order the Ministery of Health to pay the court fees in settlement a total of Euro 2.500,00 in addition LVA, CPA and reimbursement of the general charges as required by law;
2. I definitively place the burden on the Ministry of Health to meet expenses of CTU (Expert witnesses).
Thus decided in Rimini, public hearing on the 15 \ 03 \ 2012.
THE JUDGE
Lucio ARDIGO ‘
Translated by JLM Donegan 23 May 2012