CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ IN THE DOCTORǧPATIENT RELATIONSHIP… type liability pursuant to Art. 1218 CC 53 . Therefore, patients could have based a claim on the violation of contractual duties, regardless of whether they have entered into a formal or explicit contract with a physician and/or the medical institution. Contrary to precedent case-law, in force for more than fifteen years, the recent reform on professional liability of healthcare professionals entered into force on April 1 st , 2017 (Law 8 March 2017, no. 24) has placed medical liability in a two-fold regime 54 : liability of healthcare facilities is contractual according to Art. 1218 CC 55 ; on the other hand, liability of doctors, employees and of all individuals providing health services in medical institutions is exclusively a tort liability, as provided by Art. 2043 CC 56 . Needless to say that liability on contracts is favorable to the claimant. The burden of proof is placed on the health facility. Namely, the claimant is due to provide: i.) evidence of the damages; ii.) worsening of his health conditions in the course of treatments and iii.) to allege the breach of contractual duties. Last but not least, the limitation period is of 10 years. On the contrary, as far as tortious liability is concerned, the burden of proof is borne by the patient: in other words, it is up to the claimant to provide evidence of all the requirements to establish liability on torts, including fault of the doctor and causal link between damages and faulty conduct, without application of any presumption. Torts’ limitation period is of 5 years. In conclusion, given the advantages provided to patients by contractual liability, the ratio of the reform is to shift claims against the hospital and to reduce involvement of the doctors in litigations 57 . THE ROLE OF CONSENSUS 53 In the Italian legal system contractual liability ( responsabilità contrattuale ) does not derive exclusively from contracts stricto sensu : indeed, it should be – more correctly – defined as responsabilità da inadempimento (‘liability [deriving] from non-fulfilment’), which clearly indicates that any breach of a (pre-existent) obligation might lead to contractual liability, i.e. to liability ex Art. 1218 CC. See MENGONI, Luigi. Responsabilità contrattuale, headword. In Enciclopedia del Diritto XXXIX. (1988), p. 1072 ff., who points out that a ‘synecdoche’ is used to define responsabilità contrattuale . 54 See in part. Art. 7, Law no. 24/2017. 55 The outcome does not change in the case that the patient concludes a contract with a physician practicing their professional activity within a medical institution. Regardless of the type of labor relationship between the physician and the medical institution, in the case of medical malpractice the patient may bring an action in contract against both the physician and the medical institution. The liability of the medical institution in this case derives from the mere admission of the patient within its premises, which – according to jurisprudence – de facto generates a contract. 56 A contradiction has been found between the express legislative provision of Law no. 219/2017, where a doctor- patient relationship based on care and trust is provided, and art. 7 of the slightly earlier Law no. 24/2017, according to which, in cases where medical malpractice imputable to a physician employed in a medical institution had caused personal injury to the patient, the former is entitled to bring “solely” a tortious claim against the physician (PUCELLA, Roberto. La relazione di fiducia tra medico e paziente. Resp. medica . (2019), p. 76 and, Id., È tempo per un ripensamento del rapporto medico-paziente?. Ivi. (2017), p. 3 ff.). 57 For a comparative perspective, see OLIPHANT, Ken and WRIGHT, Richard W. (eds.). Medical Malpractice and Compensation in Global Perspective. De Gruyter, Berlin/Boston 2013.

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