Medical malpractice and the insurance industry: is a “systemic” revolution possible?

The text of the bill recently issued by the Social Affairs Committee, above all given the works of the Alpa committee of the Ministry of Health, not only offers many points that are worthy of further analysis and intervenes on several controverisial fronts, but above all, seems to present itself as an authentic “systemic” intervention in the medical health industry.

Even though the text will quite naturally be examined by other Committees and the Chamber, it is quite evident that the legislator intends to address the question of medical liability not only from a civil and criminal point of view, but also from the broader aspect of risk management.

It would seem that all those concerned are finally convinced that the lack of organizational systems for the correct management of clinical risks makes it impossible to find legal solutions that reduce the costs of litigation in this field.

The explicit reference to appropriateness in the use of “structural, technological and organizational resources”, together with the introduction of risk management and internal audit functions – typical of other regulated industries (such as banking and insurance) – are a clear indication of the change of pace.

In order to overcome the interpretation uncertainties triggered by the “Balduzzi law“, it is explained, from a statutory point of view, that if the healthcare structure “avails itself of the services of healthcare professionals, even if the same are selected by the patient and even if the same are not employees of the structure”, its responsibility is contractual, without prejudice to the concurrent tortious liability of the professional.

Moreover, the solution of making it obligatory to perform a prior assessment by a court expert with proven experience for the conciliation (an instrument already provided by art. 696 bis of the Italian Code of Civil Procedure), is certainly appreciable and probably goes in the right direction.

Just as appreciable – in terms of saving time and given that there are no laws that make the report of the expert appointed by the court pursuant to art. 696 bis binding – is the choice of using the “simplified” ordinary proceedings set forth by art. 702 bis of the Italian Code of Civil Procedure, when the parties are unable to reach a settlement after the expert’s assessment.

The possibility of allowing the Judge to apply a fine to the party who has not participated in the expert’s assessment, in addition to paying the expert’s and legal expenses, is indeed innovative (and perhaps open to a number of criticalities with respect to the principles by which our civil proceeding is inspired).

These are a set of laws that could certainly help to solve the doctor-patient issue much faster with respect to what currently occurs, above all considering that the reference to guidelines and best practices accredited by the scientific community – which is now more precise and accompanied by a list of scientific societies from which they are taken and established pursuant to decree of the Ministry of Health – could produce a new and different approach by the court expert and from his/her evaluations – in this matter, as in all other highly technical matters – the Judge is very unlikely to differ.

Other very important novelties should also be mentioned: the inadmissibility of a claim filed with a civil proceeding against the physician when a proceeding has been enforced by the public prosecutor’s office before the Court of Auditors; the general obligation of insurance coverage, accompanied by a direct action of the injured third party against the companies of the structures and physicians; the obligation of the transparency of information on claims for damages; the guarantee fund.

It now remains to be seen how the bill will come out of the parliamentary debate, even after its examination by the competent committees and whether it will be able to dispel the uncertainty on the financial solidity of the healthcare services system, that we know from experience is one of the greatest obstacles to private, domestic and international investments, in this industry.

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