The novelties introduced by the Italian Gelli-Bianco Law

Medical liability is a highly delicate area that impinges on the relationship between the health care
operator and the patient. Error and/or omission committed by health care operators can give rise to
malpractice suits and claims for compensation.

In this highly complex context, the Gelli reform of Law n. 64 of 08 March 2017, published in the
Italian “Gazzetta Ufficiale” on 17 March 2017, has the aim of clarifying and providing greater
certainty concerning these matters. It excludes penal liability for malpractice of physicians
provided that they can demonstrate that they have acted in compliance with the guidelines validated
by the Italian Health Institute, the “Istituto Superiore della Sanità”.

Important novelties have been introduced in the field of civil law, specifying differences in the type
of liability. Firstly, the liability of the health facility, be it private or public, will be of a contractual
nature and hence the facility will be liable for deliberate or unintentional malpractice committed by
the staff practicing their profession in that facility, as stipulated in the combination of articles 1218
and 1228 c.c.. In such cases the statute barred date will be the normal term of ten years.

Instead, the liability of health care staff that have not undertaken any contractual obligation with the
patient will be of an extra-contractual nature, within the jurisprudence of application of the Lex
Aquilia. Therefore, health care staff will answer for their actions according to the norms dictated in
article 2043 c.c. and the statute barred date will be the term of five years.

The Court of Milan was among the first to apply the new norms, with sentence n. 1654 of 16
February 2018. This confirmed that it is more advantageous to claim against the health care
facility, also in view of the longer statute debarred term, than against the health care staff.

It must also be borne in mind that with the obvious aim of reducing lawsuits, also in the field of
medical malpractice, the new discipline establishes the obligation, without which the proceedings
will be deemed inadmissible, of undergoing an ATP (“accertamento tecnico preventivo”, prior
technical ascertainment) or, alternatively, the mediation procedure, according to Law Decree N.
28/2010. The ATP will involve appointing an expert, the CTU, whose name is extracted randomly
from the registers at the Court involved, who will judge the existence of any liability, as well as
quantifying the amount if present, drawing up an expert report that will act as the basis for a
potential agreement between the parties. The insurance companies involved must also necessarily
be present at such meetings.

Instead, the mediation procedure will be held before an accredited mediation organism, the parties
must be assisted by their lawyer, and the final auspicated outcome is an out-of-court agreement,
thus avoiding a lawsuit. Should the parties refuse to undergo a mediation procedure for no
justifiable reason, this may be taken into account by the judge in the subsequent lawsuit, who may
condemn the party to pay the legal expenses.

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