Medical liability

In recent years, scientific progress, the increase in expectations of care and the extension of the doctor’s intervention not only to diagnosis and treatment, but also to prevention, have broadened the scope of investigation concerning the responsibility of the doctor, so as to go beyond the limits of the limited relationship that binds the doctor to the patient and to make the term “medical liability” preferable, in order to include all the titles of responsibility in the sector in question.

Following the entry into force of Law 189/2012, the so-called Balduzzi law, doctrine and jurisprudence have posed the problem of correctly framing the question of medical liability.

Previously, this responsibility had been constantly attributed to the contractual liability for non-fulfillment pursuant to art. 1218 of the Italian Civil Code, in conjunction with art. 1173 of the Italian Civil Code

The literal interpretation of art. 3 of the aforementioned law, on the other hand, led to the framing of the doctor’s liability as a hypothesis of an illicit aquilian. More precisely, for all the non-configurable behaviors such as non-fulfillment of a work contract other than that concluded with the hospital structure, the new regulation would impose to consider the responsibility of those who exercise the health professions attributable to art. 2043 c.c.

Consequently, in order for this liability to exist at least, all the conditions of the non-contractual offense must be manifested (damage to the law, unjust damage, causal link between conduct and event, willful misconduct or fault), whose evidentiary burden lies with the injured party, while the term Prescription passes from the ordinary ten-year term to the five-year one.

The Cetraro Law Firm is able to offer assistance in all legal aspects related to Medical Responsibility, such as:

  • diagnostic and therapeutic errors
  • incomplete or insufficient information to the patient
  • unnecessary or poorly performed surgery
  • lack of post-operative care
  • structural deficiencies of the hospital structure

In these cases, the doctor who made the mistake and the referring hospital structure are exposed to a claim for compensation by the victim, for damages of various sizes and nature, such as:

  • first aid damage
  • need for informed consent
  • damage from hospital infections
  • vaccine damage
  • drug damage
  • birth damage
  • blood transfusion damage
  • damage from cosmetic surgery

Sometimes, however, the professional responsibility of the doctor is wrongly invoked, with a series of negative consequences to the detriment of the professional and / or the reference hospital structure.

The Cetraro Law Firm has always sought a correct approach to the sector of medical liability, rejecting a preconceived vision, that is to say, taking sides a priori in favor of patients rather than doctors; in this regard it offers assistance and advice not only to damaged patients but also to professional doctors.

Cass. Civ., Section III, sentence no. 1157 of 21.01.2020: “Medical liability: the application of the parameters of the Balduzzi law by the judge (..) Art. 3, paragraph 3, of the Balduzzi law is also directly applicable in all cases in which the judge is called to apply, pending the judgment, the criterion of equitable settlement of the non-pecuniary damage (with the only limit of the internal judgment on the quantum) , since the fact that the unlawful conduct was committed (and the damage occurred) prior to the entry into force of the law itself was not an obstacle.”

Cass. Civ., Section III, order no. 852 of 17.01.2020: “Transfusion with infected blood: the lack of traceability of the bag nails the hospital (..) Sacrosanct for the Judges the right to compensation for the person who contracted hepatitis B following the transfusion. No doubt as to the liability attributable to the healthcare facility, precisely in the light of the failure to indicate in the medical record the accompanying report of the blood transfusion center. “

Law 8 November 2012 n. 189 c.d. Balduzzi law