The legislative reform of medical liability in Italy and the decriminalization of slight negligence: controversial issues

Background: in recent years, the Italian Supreme Court has stated principles leading to: a) an increase in damages awarded to patients and premiums demanded by insurance, resulting in increased health care costs, b) the birth and growth of the so-called defensive medicine with major economic repercussions. The Italian legislator tried to remedy the spread of defensive medicine by enacting Law n. 189/2012. Objectives: the authors illustrate the actual innovations introduced by the law in the medical liability system developed by the Italian Supreme Court in the last fifteen years. The authors analyze the question of the suitability of the reform: a) to eliminate the practice of defensive medicine; b) to reduce expenditure for compensations; c) to increase the serenity of physicians in their medical practice. Methods: the authors analyze the effects of the new rules and compare them with the principles laid down by the Supreme Court on negligence, contractual liability and personal injury. Results/Discussion and Conclusions: law n. 189/2012 confirms that the guidelines are not binding. Indeed, the doctor who complies with the guideline can in any case be declared liable when the circumstances of the case make it not applicable. However, the legislative reform states that if the physician meets with guidelines which were not to be applied, the penal responsibility can be established only when his/her conduct constitutes a gross negligence of the doctor. Hence, the legislator has decriminalized negligence. This new rule raises first of all unconstitutionality issues. Furthermore, the application of a guideline also aimed at reducing health care spending could be considered as a gross negligence because the Italian Supreme Court has stated that the predominance of the patient's health over economic interests of medical facilities is a basic rule. Hence, the doctor would in any case be convicted. With regard to civil liability, the legislative reform states that in case of slight negligence, the duty laid down in article 2043 of the Civil Code applies. Although article 2043 of the Civil Code relates only to the pecuniary loss and non-contractual liability, the reform does not appear to change either the contractual nature of the medical liability or the obligation to compensate also the biological and the pain-and-suffering damages. Indeed, law no. 189/2012 refers only to the obligation under article 2043 of the Civil Code, i.e. the obligation to compensate contra ius damages. As a result, article 2043 does not refer to the nature of liability, whether contractual or non-contractual. In addition, the concept of contra ius damage may also include the biological damage as well as the pain-and-suffering damage. Otherwise, the legislative reform would be unconstitutional. Concerning the quantification of damages, the reform states that the court must take into account the fact that the physician has complied with the guidelines. But this rule determines unequal treatment of patients because the same damage caused with the same degree of negligence would be compensated with different amounts depending on whether or not the doctor has followed the guidelines. Therefore, the suitability of the reform in reducing health care costs for compensation and for defensive medicine is very questionable.