Italian reforms of healthcare practitioners' liability - An overview of the innovations with specific reference to insurance matters
A Bill dealing with medical liability, entitled “Provisions regarding professional liability of healthcare professionals”, is being considered in Italy.
The Senate Health and Hygiene Committee is currently examining a Bill regarding medical liability, entitled “Provisions regarding professional liability of healthcare professionals”, which has already been approved by the Chamber of Deputies on 28 January 2016.
Health Ombudsman and other new bodies
One of the most significant innovations contained in the Bill is the creation of an Ombudsman for Health, to whom recipients of medical care can address their complaints.
Moreover, it is envisaged that new bodies will be created to collect data about medical malpractice and related litigation, to identify appropriate measures to prevent and manage the healthcare risk, and also to train and update healthcare professionals.
Criminal liability of the doctor
Regarding the criminal liability of doctors, an important innovation is the introduction of the new article 590-ter of the Italian Criminal Code, entitled “Liability in negligence for death or personal injury in a healthcare environment”. This provides that a healthcare professional who causes death or personal injury to a patient by negligence during the exercise of his functions may be liable for manslaughter (art. 589 of the Italian Criminal Code) or negligent personal injury (art. 590 of the Italian Criminal Code) only in the event of gross negligence.
Civil liability of the healthcare facility and of the doctor.
The Bill provides that the healthcare facility will be liable in contract for the doctor’s negligent or fraudulent behaviour, even where the patient has chosen the doctor and brought him/her to the healthcare facility. Conversely, the Bill makes clear once and for all that the doctor is liable in tort, with all consequences regarding burden of proof and statutes of limitation.
Mandatory attempt at conciliation
A party cannot bring a claim for damages arising out of healthcare liability without having first filed a request for mandatory conciliation; failure to file such a request will mean that the judicial proceedings will be declared inadmissible. All parties, including the relevant insurance companies, must attend. A party who fails to attend the conciliation procedure will face costs liability in respect of experts’ and legal fees, whatever the outcome of the proceedings, in addition to a fine.
Right of recovery from the doctor
The medical facility or its insurers may bring a recovery action against the professional in the event of gross negligence or fraudulent behaviour, and these rights may be exercised only before the civil courts, not before the “Corte dei conti” (which is the Italian Institution with the role of safeguarding public finance and guaranteeing the respect of judicial system). If the professional has not been joined to the original liability action, the right of recovery may be exercised only after the damages have been paid, and in any event within one year of the date of the final liability judgment or from the payment of any settlement sums.
If the professional is declared liable in gross negligence, the amount of the recovery cannot exceed three times his/her gross annual salary.
Mandatory insurance
As well as the professional’s obligation to have appropriate insurance cover in place covering the risks arising from the exercise of his/her professional activities, the Bill will require the healthcare facility to have insurance in place to cover civil liability to third parties and also any damage caused to the professionals themselves while they are working at the healthcare facility.
The Bill provides for an extension of the insurance cover for the risks arising out of the exercise of the professional activity; the insured has to make a claim within five years of the expiration of the policy, and the events complained of must have taken place during the policy period.
In the event that the professional ceases to engage in his/her professional activities for any reason, the Bill provides for an extension of the insurance cover, to extend to cover for the professional’s heirs. Cover must be for any claim notified for the first time within ten years either of cessation of the professional activity and which is based on torts which occurred during the policy period.
Within the limits of the insurance cover offered by the relevant policy, the Bill will give victims a direct right of action against the insurers of both the healthcare facility and the professional. Such action is subject to the same time limit of ten years from the relevant event or the emergence of symptoms, as applicable to the action against the healthcare facility.
A significant innovation concerns the prohibition on rejecting cover on the basis of the policy terms, insofar as those terms differ from the ones which will be set out in a Ministerial Decree in due course. The Ministerial Decree will also prescribe the minimum requirements for insurance policies for healthcare facilities.
The insurance company will then have a right to recovery from the insured to the extent that insurers would have had the right to rely on the policy terms to reject or limit any claim by the insured.
The Bill is expected to become law by the end of 2016 and hopefully before the summer. The debate on the pros and cons of the Bill is going on in Italy.
