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Medical Malpractice in Italy: An Overall Reform in Civil and Criminal Liability of the medical profession

11 May 2017

Claudio Ceriani

By Law no. 24 of 8/3/2017, entered into force on 1/4/2017 (“Law”), Italian Parliament enacted a reform of the rules governing liability for medical malpractice.

The scope of the Law
The Law, better known as “Law Gelli”, after the name of its main drafter, has the general purpose of harmonizing the relationship between doctor and patient, ensuring a serenity of action of the former in carrying out his profession and the safety of the latter and his/her rights should he/she fall victim to medical malpractice.

Specific purposes are as follows:
a) to monitor the events of medical malpractice cases and to draft preventive measures;
b) to reduce the burdens of the individual practitioner shifting the financial risks of claims to healthcare facilities;
c) to reduce the so called “Defensive Medicine”, meaning the attitude of doctors to depart from normal medical practice as a safeguard from litigation (i.e. by performing/not performing treatments or submitting patients to unnecessary tests, being more concerned to avoid exposure to malpractice litigation rather than to provide the better treatment). A practice involving both potential health risks for patients and substantial increase of the healthcare costs.
e) to reduce level of litigation and timing and costs of the same.

The content of the Law
Article 7: Civil liability that becomes two-fold:
a) Liability of healthcare facilities, whether public of private, is contractual according to Article 1218 of Italian Civil Code. Likewise, the liability of professionals acting in private practice with a direct contractual relationship with the patient or whenever a contractual relationship can be envisaged.

Liability on contracts means that the burden of proof is placed on the health facility. Namely, the Claimant is due to provide evidence of the damages or worsening of his/her health conditions in the course of treatments and to allege the breach of contractual duties. Then it is up to the Defendant to give evidence that the professional performance was duly carried out and that those worsening outcomes were caused by an unforeseeable event, unavoidable with ordinary professional care. Limitation period is 10 years.

b) Liability of doctors, employees and of all individuals providing health services in healthcare facilities is exclusively a tort liability , as provided by article 2043 of the Italian Civil Code. Burden of proof is borne by the patient: it is up to the Claimant to provide evidence of all the requirements to establish liability on torts, including fault of the doctor and causal link between damages and faulty conduct, without application of any presumption. Torts’ limitation period is 5 years.

Given the advantages provided to patients by contractual liability, the ratio of the reform is to shift claims against the hospital and to reduce involvement of the doctors in litigations.

Article 8 of the law establishes new procedure rules aimed at reducing lawsuits.
As a pre-condition to issue Court proceedings, a preliminary technical expertise with settlement/mediation purposes, as provided by Article 696-bis of Italian Civil Procedure Code, is to be carried out. Or, as an alternative, a pre-trial attempt of mediation provided by Decree 28/2010. Failing to attend, the party with the final ruling, regardless to the outcome, is condemned to pay legal and expert fees and to pay an additional fine to the counter party.

Articles 10-12 provide for a compulsory Insurance coverage of health facilities and professionals and, for the direct right of action of patients against the Insurers. Insurers have also the said duty to attend the pre-trial procedures and to make an offer for settlement or to inform on their denial with related grounds. Failure to fulfill these obligations may lead also to fines issued by IVASS, the Surveillance Authority on Insurance companies.

These provisions are still to come into force being required the enactment of an implementing decree on minimum requirements of mandatory Insurance coverages.

At present, only Charts for “minor injuries”, the ones up to 9% of permanent impairment have been enacted, establishing values significantly lower than the ones provided by Charts generally applied by Courts. Caps/reduced amounts of awardable damages is aimed to limit Insurers liabilities and to make predictable their extent.

As to criminal liability, a new Article (590-sexies) has been added to Italian Criminal Code: Liability for negligent personal injuries or manslaughter in case of unskillful treatment is excluded if the doctor “has followed recommendations of guidelines as defined and published according to the law or those provided by good practices if these recommendations are adequate in the given case”. Criminal liability can still be established for any negligent or imprudent conduct causing personal injuries or death of the patient.

Case law in future times will show whether the reform shall be able to achieve its stated goals and specifically, amongst them, on one hand a prompt and effective protection of patients’ rights and, on the other, a relief of medical professionals from the heavy burden of civil liabilities and connected insurance costs as well as the actual exposure to criminal proceedings.

For more information, contact avv. Claudio Ceriani e: cceriani@scflex.it

SCF Studio Legale
t: +39 02 45472049 | Sedi in Milano e Venezia | www.scflex.it

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