Medical liability after the reform implemented by the Law “Gelli – Bianco”
In recent years the Legislature has changed the rules governing the responsibility of the doctor and the health structure, both in civil and criminal matters, establishing rules of conduct for both, with the primary purpose of protecting the right to health of patients.
However, the recent entry into force of the Law ” Gelli – Bianco ” (Law No. 24 of 8/3/2017), after only five years since the last reform of the medical liability implemented by the Decree ” Balduzzi ” (DL n. 158 of 13/09/2012), converted with changes in the law N. 189 8/11/2012), it has become necessary because of the 2012 reform failure in achieving the objectives.
The reforms implemented by the Decree “Balduzzi”
The Decree “Balduzzi” of 2012 had as its aim to focus attention on the figure of the patient, providing for rules aimed at protecting the right to health and medical treatment of the latter conform to the guidelines accredited by the scientific community.
In particular, among the main changes provided by Decree No. 158 of 13.09.2012 regarding medical liability, there were:
- the assessment of the responsibility of the doctor and his team, on the basis of guidelines and best practices developed by national and international scientific community;
- the exclusion of criminal responsibility of the doctor who had followed the guidelines and best practices above, for mistakes made at fault mild;
- the provision of non-contractual liability of the doctor.
The ultimate goal of “Balduzzi” Decree was to stop the now rampant phenomenon of the cd. defensive medicine, the malpractice followed by the doctor whom, to avoid taking legal retaliation by the patient:
- prescribes to the latter diagnostic or therapeutic additional examinations unnecessary with respect to those already made (defensive medicine ” positive“);
- avoids dealing with certain patients or to perform interventions considered high-risk, often directing them to other specialists (defensive medicine “negative” ).
However, the flawed 2012 law left too many margins of interpretation, especially on liability “contract” or “non-contractual” doctors, resulting in recent years a serious aggravation of the aforementioned phenomenon.
The Law “Gelli – Bianco”
In order to curb corruption and to avoid unnecessary waste of public money, the Legislature has again reformed its health sector discipline, trying to frame sure the professional responsibility of the physician and health facility, in order to protect both the health of patients (art. 1 expressly provides that the safety of care goes to constitute the constitutional right to health), is the figure of the doctor.
Among the main new features of the Act include:
- The introduction of the Guarantor for the right to health.
- The prediction of criminal responsibility of the medical and health care professionals only in cases of gross negligence (art. 3).
- The prediction of the contractual liability of the health and extra-contractual structure of the doctor for damages caused to the patient (except in cases of contractual obligation assumed by the doctor with the latter, in which case you configure a contractual liability) (art. 7).
- The obligation on the part of the hospital, to acquire an insurance coverage for third party liability and labor providers (doctors, health workers, etc.) (art. 10).
- The introduction of the right for recourse on the part of the hospital, against the doctor or user of the health profession, only in case of fraud or gross negligence (art. 9).
- The possibility for the injured party, to take action directly against the insurance company of health or medical facility, within the limits of the amounts for which the insurance contract was entered into (Art. 12);
- The obligatory nature of the conciliation attempt by the injured party who intends to sue the doctor or medical establishment (Art. 8).
- The ‘ duty of transparency on the part of public and private treatment centers: they will provide the patient, within 7 days, the health documents he had requested, and publish on their websites the data related to compensation paid in the last five years (art. 4).
- the creation of a guarantee fund , which will be responsible to reimburse patients for any damage caused by health responsibilities in certain cases (if the damage exceeds the maximum amount of insurance coverage of the health facility or doctor in case of default by the of the latter, etc.) (art. 14).
- The application of the tables in articles. 138 and 139 of the Code of Private Insurance for the quantification of the damage suffered by the patient.
The responsibility of the physician and health facility
Particular attention should be given to Articles 6 and 7 of the law “Gelli – Bianco”, which respectively provide for the criminal liability of the doctor and the civilian of the latter and of the hospital.
The criminal liability of the health care profession
Art. 6 , introducing art. 590 sexies of the Italian Penal Code prescribes the exemption of guilt against the doctor (or nurse) who, in the exercise of the profession, has caused a manslaughter or injuries following the guidelines and good practices (that will be) published by the Ministry of Health.
In fact, he will be punishable only in the event of proven gross negligence, that you never set up in case of compliance with the guidelines mentioned above, so far as applicable to the case.
The liability of the physician and health facility
Art. 7 , however, as mentioned, it requires a different type civil liability of the healthcare facility and the operator the profession.
In respect of the first one it will be applicable contractual liability , pursuant to art. 1218 and 1228 of the Italian civil code, for the damage caused to the patient by health professionals that makes use or those chosen by the patient; while the operator of the health care profession (doctor, nurse, etc.) will be liable in the tort , pursuant to art. 2043 cc, unless it is contractually obligated with the patient.
The difference between the two types of responsibilities it resides:
- the limitation period of the damaged hand to sue (10 years in case of breach of contract, five years in the case of extra-contractual liability);
- the breakdown of the ‘ burden of proof :
- in legal actions against the health care facility the patient will only demonstrate the obligation assumption by the hospital and its failure (eg: the verbal rescue Ready constitutes a proof of receipt health service);
- actions against the doctor (or health care), however, he must demonstrate not only the objective element (conduct prejudicial, harmful event and causal link between the first two), but also the negligent attitude of the doctor.
From the aforegoing it follows that, in case of damage suffered as a result of a medical intervention within a healthcare facility, it will be more advantageous for the patient to take legal action directly against the latter and / or of the respective insurance company, instead of against medical advice.
Subsequently, the outcome of a liquidation of damages in favor of the patient compensation, health structure will have the right to claim against the doctor, if it has been proved in court that he acted with intent or gross negligence.
IN SUMMARY
The reform on medical liability implemented in 2017 with “Gelli Bianco Law” has tried to fill the regulatory gaps in the “Balduzzi decree” of 2012, introducing fundamental direct news to actively ensure optimal patient care and to stem the flow of ” defensive medicine, “including:
- The prediction of criminal responsibility of the medical and health care professionals only in cases of gross negligence.
- The prediction of the contractual liability of health and non-contractual structure of the doctor for damages caused to the patient (except in cases of contractual obligation assumed by the doctor with the latter).
- The obligation on the part of the hospital, to acquire an insurance coverage for civil liability towards third parties and providers of work.
- The possibility for the injured party, to take action directly against the insurance company of health or medical facility.
