The innovations introduced by the “Gelli-Bianco” Law on civil and criminal medical liability
The law of 8 March 2017 n. 24, entered into force on 1 April, containing “Provisions on the safety of care and the assisted person, as well as on the professional liability of health care professionals”, better known as the Gelli-Bianco Law. To illustrate the changes introduced by the “de qua” Law, which has modified the previous Balduzzi Law in numerous points, is the lawyer Ginevra Borghi, owner of the homonymous Law Firm, which over the years has gained significant experience in the field of civil and criminal liability for claims related to the “medical malpractice”, collecting numerous judicial successes.
Avv. Borghi, what are the main innovations introduced by the “Gelli-Bianco” Law?
The Gelli Law introduced the art. 7 what has been defined as the “double track” of civil liability, differentiating the position of the structure from that of the health worker. Indeed, the public or private health care facility continues to respond as contractual responsibility, pursuant to Articles 1218 and 1228 of the Civil Code, with regard to the intentional and negligent conduct of the operating staff, while the responsibility of the physician, except for the case of contractual obligation taken with the patient, he now assumes an extra-contractual nature (Article 2043 of the Civil Code). A not insignificant difference since, in the event of an Aquilian responsibility, there is an inversion of the probative burden that falls on the patient, who if he feels damaged, will have to prove the event (the lesion), the element psychological (the malice or the fault of the doctor) and the causal link between the conduct and the harm suffered (in case of contractual responsibility, however, the patient must limit himself to trying to have turned to the health facility and have suffered damage, while it is up to the structure itself to prove that the performance has been carried out in compliance with the best medical science and professional obligations). In terms of limitation, then, the compensation for damages from a non-contractual fault is subject to the short limitation set forth in art. 2947 c.c. (only 5 years), while the unlawful contract applies the art. 2946 c.c. which provides for the ordinary term of ten years, except in cases expressly provided for by law.
What, however, the news in the criminal field?
Article. 6 of the aforementioned law introduces the art. 590 sexies in the penal code, entitled “Liability for culpable death or personal injury in health”. This article expressly provides for the non-punishment of the doctor due to inexperience when, in carrying out the health activity, respects the recommendations provided for by the c.d. Guidelines or, in the absence of these, good clinical-care practices, provided they are appropriate to the specific case.
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By Roberta Imbimbo