With the entry into force of the “Balduzzi” law (n. 189/2012), the legislator had intended to intervene in an area, the health sector, which is strongly characterized by the excessive exposure of the medical staff to criminal and civil liability. The law was aimed at two main objectives:
– limiting the liability of individual physicians employed by hospitals in order to allow a reduction in insurance costs;
– limiting the use of the so-called “defensive medicine”, i.e. the excessive prescription of tests and checks in order to avoid any potential negligence claim by patients, which results in an increase of the health-care costs borne by the community. Specifically, Article. 3, entitled “Professional liability of operators in health related professions” provides that: “The healthcare profes-sional who, in carrying out his/her activities, adheres to guidelines and best practices approved by the scientific community is not criminally liable for culpa levis.
In such cases, the obligation set forth by Article 2043 of the Italian Civil Code still remains. The judge, also in determining the com-pensation for the damage, shall take due account of the conduct described in the first sentence”. Since its entry into force, this rule has been interpreted in numerous and controversial ways by Scholars and case law. The line of decisions in recent years provided that both the health care institution and the doctor-employee, should be held liable towards the patient / damaged party, pursuant to Article 1218 of the civil code; the health care institution based on the so-called “hospitalisation” or “medical care” agreement, which is concluded by conclusive facts when the patient is admitted to hospital; the doctor based on the theory of the “social contract”, even in the absence of a specific contract agreed with the patient. In this framework, the reference made by the law in question to the concept of the doctor’s non- contractual liability stated by Article 2043 c.c. has given room for different interpretations of the real intention of the legislator. In this respect, we may refer to some decisions issued by several courts which have criticized article 3 of Law 189/2012, labeling it as an incorrect reference to the Aquilian liability in civil cases. For example, the Court of Rovereto (Judgment 29/12/2013) established that the legislator’s intentions were to refer the applicability of Article 2043 c.c. to the criminal court in case of civil action brought in criminal proceedings.
On the other front, certain courts, including Turin, (judgment 26/02/2013) have caught in that very rule a glimpse of a choice of breaking away from all the case-law in force and have taken art. 2043 c.c. as reference, both for the liability of the physician and of the health care institution. The Supreme Court has also entered the debate, with a ruling of February 2013, only partly accepting the innovative spirit of the rule and therefore limiting its effectiveness. The recent judgment of the Court of Milan of 17 July 2014 will necessarily lead to a uniform line of decisions towards the real intent of the legislator.
In fact, in the judgment in question the Judge of Milan traced an appropriate critical outline of the case law of the last two years, making a thorough analysis of the rules, and has come to state, with logical reasoning, that the position of the doctor must be kept distinct from that of the health care institution. The judgment dissociates itself from the interpretive vision of the Supreme Court on the value attributed to Article 2043 c.c. in the context of Article 3, and limits itself to applying it according to “the meaning it may have according to its wording and to the intention of the legislator”, as provided by Article 12. Therefore, while the health care institution is liable to the patient on a contractual level, by virtue of the agreement of “hospitali-zation” (the legislator has not intervened on this issue), the doctor who has not entered into any agreement with the patient must be held liable only and in any case on the basis of the principles of non-contractual liability. In this way, the rule takes a linear and effective value and can represent the beginning of a small revolution in the sector. If confirmed by the Supreme Court, the effects of this decision will lead to a series of consequences, both at the legal and at the economic level: 1) at a probative level, the Aquilian liability involves a reversal of the burden of proof on the part of the patient; 2) at a procedural level, the limitation periods for the patient are reduced from ten to five years; 3) at a commercial level, the lower exposure of a large part of the doctors, by virtue of the two previous points, should favour a reduction in the premiums of the professional liability insurance policy, which is now compulsory; 4) at an economic/political level, doctors should be encouraged to limit the use of unnecessary diagnostic tests on their patients, thus reducing the costs of public health. These are, of course, predictions that will not be fulfilled quickly, but the premises seem to point towards the right direction.
(Milan Office – Michele Borlasca and Leoniero Paolo Galleani – 0039(0)2 39680538)
