A bill recently issued by the Social Affairs Committee, following the findings of the Ministry of Health's Alpa committee,(1) proposes a number of points that are worthy of analysis – including, above all, a systemic intervention in the healthcare industry.
The bill will be examined by other committees and Parliament and it is clear that the legislature aims to address the question of medical liability from a civil and criminal perspective, as well as in broader terms of risk management. It appears to be finally convinced that the lack of organisational structures for the management of clinical risks makes it impossible to find legal solutions that reduce the cost of litigation in this field. The bill's reference to the appropriate use of "structural, technological and organisational resources", together with the introduction of the risk management and internal audit functions typical of other regulated industries such as banking and insurance, indicate a clear change of direction.
In order to overcome the interpretative uncertainties that the Balduzzi Decree (Decree-Law 158/2012) introduced to the healthcare sector, the bill clarifies from a statutory viewpoint that if a healthcare organisation "avails of the services of healthcare professionals, even if they are selected by the patient and are not employees of the organisation", its responsibility is contractual, without prejudice to the concurrent tortious liability of the healthcare professional.
The bill proposes a number of significant solutions in that regard:
- A court expert with proven conciliation experience (Article 696bis of the Code of Civil Procedure) must conduct a prior assessment;
- The simplified proceedings set out by Article 702bis of the Code of Civil Procedure can be used when parties cannot reach a settlement following the court expert's assessment (both to save time and because the expert's report is not binding by law); and
- The court can fine a party that does not participate in the expert's assessment and order it to pay the expert's legal expenses. However, this provision is arguably open to criticism under the principles of civil proceedings.
The bill could also help to resolve malpractice claims more quickly – especially given that the court expert's reference to guidelines and best practices in the scientific community should result in an innovative approach to assessment. Given the technical nature of the subject matter, the courts decisions are unlikely to differ from the court expert's assessments.
Other notable innovations that the bill proposes include:
- making a civil claim against a doctor inadmissible when a proceeding has already been enforced by the public prosecutor's office before the court of auditors;
- the general obligation of having insurance that covers direct action of the injured third party against hospitals and professionals;
- ensuring the transparency of information on claims for damages; and
- the introduction of a guarantee fund.
It remains to be seen whether following parliamentary debate and further examination by expert committees the bill will be able to dispel the uncertainty surrounding the healthcare system's financial wellbeing, which is one of the greatest obstacles to private, domestic and international investment.
For further information on this topic please contact David Maria Marino or Vito Bisceglie at DLA Piper Italy by telephone (+39 02 80 61 81) or email ([email protected] or [email protected]). The DLA Piper website can be accessed at www.dlapiper.com.
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