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Medical Malpractice in Italy

In the last decades, litigation regarding alleged medical malpractice has increased exponentially. Medical Malpractice occurs when a healthcare professional such as a doctor, nurse or technician treats a patient in a manner, which departs from a standard of care provided by those with similar training and experience, resulting in injury, ailment or death. The concept includes the one of medical misdiagnosis, which is when a patient suffer significant injuries for a missing, improper or delayed diagnosis, and matters of misdiagnosis represent nowadays one of the primary reasons for medical malpractice claims to be filed.

Before starting with our analysis, we must point out that Italy operates on a Civil Law system, which is based on Roman law. That circumstance is not irrelevant for our purposes, since the differences between the two legal systems also influence the medical liability laws.

Indeed, that means that in theory damage claims for medical malpractice should be easier to be claimed in Italy. In fact, for the Italian system, a claim for medical malpractice is based on just one element, which is personal injury sustained (“lesioni personali colpose”), while in most common law systems, we usually need four legal elements: duty of care, breach of duty, injury and proximate cause. Without their presence, no claim will be supposedly successful.

A medical practitioner in Italy can be held liable not only for civil issues before a civil court (Tribunale Civile), but as well for criminal ones before a criminal court (Tribunale Penale). Some actions may in fact constitute censurable conducts for the Italian Criminal Code as personal injuries. The Code defines this offense as “an event which, even if unintentional, occurred due to negligence, imprudence, inexperience or failure to comply with laws, regulations, orders and disciplines” (art. 43, Italian Criminal Code).

Personal injury, according to Italian Law, may consist in:

Negligence (negligenza), which is lack of due care and means the omission of necessary precautions. For example, when the surgeon leaves clips, instruments or gauze sponges in the surgical wound.
Imprudence (imprudenza) that is the case of a given medical action realized in absence of all the necessary precautions that common experience suggests. For example if a surgeon performs complex and delicate surgery despite knowing that he is not in perfect physical condition.
Inexperience (imperizia) that is the lack of adequate training in activities, which require specialised technical knowledge. It means a deficiency of practice, intuition, capacity or technical expertise.
Medicine is commonly known to be a matter of uncertainty in the legal world for its several unpredictable outcomes, complications or reactions due to scientific progress. This peculiar nature of the field makes it quite hard to grade correctly the performance and results of medical practitioners, which is why a crucial mean of protection for professionals is to obtain a previous informed consent of their patients.

In order for patients to give their consent by law for a medical procedure, they have to be informed fully and accurately of the nature of the procedure to undertake. In other words, the consent must be based upon a clear appreciation and understanding of the facts, implications and future consequences of such procedure. A patient has to be aware of all aspects and the consequences: surgical techniques used type of operation, products administered before, during and after the operation, the results obtained and the foreseeable risks.

In case of undesirable outcomes of the procedure, an inadequate set of information given by the professional, or incomplete or false information are likely to constitute a civil and even criminal liability.  When found liable, the medical practitioner may suffer some serious legal implications and the victims become entitled to start a claim for all damages suffered. Under Italian Law, damages payable fall into the following categories: patrimonial damages, biological/aesthetic damages, moral damages and psychological suffering.

Due to the particular form of the relationship existing between a doctor/surgeon and the facility/hospital, the Italian Supreme Court has relatively recently ruled that both the practitioner and the medical facility are held liable for damages suffered in case of unsuccessful procedure.

The medical liability case law has now evolved moving from the tendency to evaluate with understanding and benevolence the performance of professionals, towards a more severe system characterized by:

a) The relevance of serious negligence only in exceptional cases and only in the civil field;

b) Reversal of the burden of proof in the civil field;

c) A tendency to establish guilt on the basis of an objective breach of a duty of care, prudence or skill regardless of an exam of the possibility for practitioner to actually follow the best course of action in the specific case.

This new trend has consequently led to an increase in damages awarded and insurance premiums, in health care spending, and to the growth of the so-called defensive medicine, with a significant economic impact in the field.

Please notice that there is the period of time during which a potential medical malpractice victim can initiate a lawsuit is circumscribed and contingent. In fact, the Statute of Limitations in Italy allows patients to make claims for medical malpractice up to ten years after they occurred – unlike most common law countries, where this is limited to five years. Moreover, depending on the state and the procedure in question, this period can begin from the time when the malpractice occurs or alternatively, from the time of the discovery that malpractice was the cause of the injury.  For the correct evaluation of the exact start and duration of the Statute of Limitation, it becomes crucial to consult a qualified medical malpractice lawyer to avoid unprofitable outcomes of a claim.

Legal claims for Medical Malpractice against health organizations are growing phenomenon in Italy. Due probably also to the recent changes in legislation, patients and their relatives seem to no longer be willing to accept hospital and medical negligence.

A general awareness of rights to medical malpractice compensations has spread, together with a belief that that suing a health care provider could avoid similar future mistakes by increasing the attention hospitals give to protocol and higher quality standards. Surely, the amount of compensation at stake, which can reach high figures for serious injuries, is likely to increase the risk for fraudulent requests. Therefore, it is crucial to ask for the support of a Law Firm has a strong Medical Malpractice Area, counting on lawyers able to detect and address critical situations and to assist Italian and non-Italian victims of clinical negligence.

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