Medical malpractice

The case

• A patient undergoes a complicated operation.

• The operation was carried out in a public hospital, without any contract between the patient and the doctor

or the medical institution.

The case

• The operation didn't go well and the patient gradually became cripple.

• An expert advised him over the negligence under which the performance was carried

out.

• Seven years later he brought an action against the doctor and the hospital: the

"Claim".

The hospital position

• The doctor was an employee of this public institution and acted in his quality but denies any negligence on his part.

• The hospital pointed out that there was no contract with the patient as the performance occurred while providing a public service (not private).

• Finally hospital criticized the statute of limitation the claim is subject to.

The doctor position

• The doctor also recalled to his employment and non-negligence stressing that the operation was particularly difficult

• He asserted that there was no contract between him and the patient

• Then he said that he couldn't be sentenced individually (due to the lack of obligations toward the patient)

Statute of limitation & contratto di spedalità

• Art. 2947 c.c.

• "Il diritto al risarcimento del danno derivante da fatto illecito si prescrive in cinque anni dal giorno in cui il fatto si è verificato .

• In ogni caso, se il fatto è considerato dalla legge come reato e per il reato è stabilita una prescrizione più lunga, questa si applica anche all'azione civile"

Statute of limitation & contratto di spedalità

• What is exactly the "contratto di spedalità" ?

• It's a contract between the hospital and the patient that prescribes medical cures, medicines, nurseries, medical machinery, food and accommodation, that has an agreement nature.

• It finishes only when the patient gets out of the hospital.

Obligation to act?

• Art 1173 c.c.

• "Le obbligazioni derivano da contratto, da fatto illecito, o da ogni altro atto o fatto idoneo a produrle in conformità dell'ordinamento giuridico"

Obligation to act?

• The responsibility "da contatto sociale qualificato" it's a particular form of contractual liability that is independent on rom the existence of a contract in the strict sense of the term.

• It's existence can be determine when between the two parties there's a particular social relationship that is consolidated by the legal system.

When is the physician responsible?

• Art. 2236 c.c.

• "Se la prestazione implica la soluzione di problemi tecnici di speciale difficoltà, il prestatore d'opera non risponde dei danni, se non in caso di dolo o di colpa grave".

When is the physician responsible?

• Art. 2697 c.c.

• "Chi vuol far valere un diritto in giudizio deve provare i fatti che ne costituiscono il fondamento. Chi eccepisce l'inefficacia di tali fatti ovvero eccepisce che il diritto si è modificato o estinto deve provare i fatti su cui l'eccezione si fonda"

Who has to prove the negligence in performance?

• Given that in this case the operation is particularly difficult, Art. 2236 c.c. specifies that only in case of malice or gross negligence the physician is responsible for the damages.

• Even if the article is in favor of the doctor, the patient could support his claim over considering gross negligence as a form of negligence.

• In that case the patient has to prove (gross) negligence whit the help of a third medical part (a specialized independent coroner) and a lawyer.

The correlation between fault and occurrence of damage

• Fault is the failure to perform an obligation in a manner conforming with an objective and specified standard of diligence.

• Causation is the external relation between the conduct and damage with neither reference to the defendant's mental state nor his expectation regarding avoidable damages

The correlation between fault and occurrence of damage

• What is causation-in-fact (necessary to establish contractual and extra-contractual liability)?

• It's the burden of proving the causal link between a breach of duty by the physician and the damage (patient's health).

The correlation between fault and occurrence of damage

• Before and After 2008 :

• Before, the only part responsible of proving the causation between the operation and the worsening of wealth conditions, was the claimant.

• From the Court of Cassation 10/01/2008 it is now clear that the allegation of a breach of duty by the claimant needs to be rebutted by the defendant and that encompasses also causation.

The correlation between fault and occurrence of damage

• More precisely the court asserted that:

• "the claimant's allegation cannot concern whatever breach of duty, it should rather contain a clear statement about a breach of duty, which may be able to cause damage (i.e., theoretically able to cause damage). Once the claimant (has) made this allegation, the burden shifts to the defendant to prove performance or lack of causation between a breach of duty and damage."

Conclusions

• Positive effects of "contractualization”

• The establishment of more precise claims

• Still some improvement to make on how to prove causation (as other judgment still leave the burden on the claimant).

Thank you for your attention

Ugo ZoliPatrizio Tumiet

Riccardo FrancescangeliAlessandro Lipani

Nicola Cinti