MEDICAL MALPRACTICE IN ITALY: what has changed after the Gelli's Decree
With the publication in the Official Gazette and the coming into effect of Law no. 24 dated March 8, 2017, and concerning the "Provisions for safety of treatment and the assisted person, as well as provisions for professional liability of medical professionals", the reform process for the criminal and civil responsibility of health operators comes to a close.
This measure of great importance covers a variety of themes and is intended to affect the responsibility of health operators, both from a criminal and civil point of view. Some of the most relevant themes are: safety of treatments and healthcare risks; responsibility of health professionals and the public or private healthcare institution; modes and characteristics of legal proceedings concerning the medical responsibility; the compulsory insurance (amtrust insurance); the creation of the Injured Parties Guarantee Fund, which will compensate the injured patient in case the amounts exceed the limits covered by the institution or professionals' Italy medical malpractice insurance policy.
The new position of Supervisor for the right to health has been introduced, and citizens may report to him eventual malfunctions in the system, in regard to the failure to observe the "Essential healthcare levels".
Moreover, the Centre for healthcare risk and patient safety management will be created on a regional level, while the National Observatory of healthcare safety good practises will be established on a national level.
MEDICAL MALPRACTICE IN ITALY: health professional civil responsibility
Thanks to this reform, the health professional civil responsibility will no more be considered as contractual but as non-contractual liability, in compliance with Art. 2043 of the Civil Code.
The difference is significant as compared with the past: in the past the doctor had to provide evidence that the harmful event happened for causes not related to him, however, following the reform, the burden of proof shall lie with the patient. The latter shall demonstrate the doctor's fault by providing evidence of the event (the injury), the cause (the doctor's fault), and the casual relationship between event and cause.
This new framework of health professional responsibility will have implications especially in terms of compensation.
Indeed, while in the past relevance was given to the direct relationship between the doctor and the patient, the...