SCLN Legal Network

Professional Medical Malpractice and Medical Facility Responsibility

SCLN

PROFESSIONAL MEDICAL MALPRACTICE AND MEDICAL FACILITY RESPONSIBILITY

The firm offers judicial and extrajudicial assistance with respect to litigation within medical malpractice.

Law no. 24 8 march 2017 (aka law Gelli-Bianco) introduced important and substantial modifications under civil and criminal points of view which differ from the traditional asset, with the following objectives:

1) burden the medical facilities with the responsibilities, levying the doctors working there, (except for the medics who provide services for contracts directly signed with the patients);

2) build an effective protection system of the injured, which is overseen by the introduction of mandatory insurance systems, globally structured, copied from the car insurance (with its principles) and with a Guarantee Fund which must act when the insurance is not sufficient.

One of the main aspects of the new law is represented by art. 7, namely “Civil liability of facilities and of who exercises medical services”.

The law is in continuity of the objectives of “Decreto Balduzzi”, which aims to overcome the ambiguities through a clear and literal clarification.

The referral to art. 2044 of the Civil Code, in the first comma of art. 3, Law no. 158/2012, through the main interpretation (and supreme court jurisprudence) was considered too soft to create a liability regime which differed from the jurisprudential one based on the concept of “social contact”.

Art. 7 of Law Gelli (which is one of the main ones of the reform) cancels any sort of doubt: it implicates the double civil liability regime:

  • It considers contractual liability “pursuant to art. 1218 and 1228 of the civil code” only for medical facilities (public and private) and for freelance medics; thus, in relation with the liability of the facility the reform did not bring an innovation, limiting itself to receiving the strong jurisprudence on the point;
  • On the other hand the liability ex art. 2043 civil code is brough upon medics who provide services within a facility, as employee or other title (but in any case “for third parties” not as a result of a direct contract with the patient).

The “system” is oriented in a rather rational way, placing the (more burdensome) regime of contractual liability on those who must ontologically assume such responsibility upon themselves, either because connected to the patient by a contract, or by virtue of their position as manager of the activity with the assumption of the duty of governance of clinical risk.

The contractual liability furthermore remains with the private medic and in any case in which it is possible to attach a contract by the medic.

The consultancy activity of the law firm, through a network of qualified professionals (civil, administrative, criminal lawyers and coroners), is functional to offer a complete system of protection with reference to the civil, criminal, administrative - accounting and disciplinary consequences harmful facts that occurred in the execution of health services.