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15 December 2015
A bill recently issued by the Social Affairs Committee, following the findings of the Ministry of Health's Alpa committee,(1) proposes a number of points that are worthy of analysis – including, above all, a systemic intervention in the healthcare industry.
The bill will be examined by other committees and Parliament and it is clear that the legislature aims to address the question of medical liability from a civil and criminal perspective, as well as in broader terms of risk management. It appears to be finally convinced that the lack of organisational structures for the management of clinical risks makes it impossible to find legal solutions that reduce the cost of litigation in this field. The bill's reference to the appropriate use of "structural, technological and organisational resources", together with the introduction of the risk management and internal audit functions typical of other regulated industries such as banking and insurance, indicate a clear change of direction.
In order to overcome the interpretative uncertainties that the Balduzzi Decree (Decree-Law 158/2012) introduced to the healthcare sector, the bill clarifies from a statutory viewpoint that if a healthcare organisation "avails of the services of healthcare professionals, even if they are selected by the patient and are not employees of the organisation", its responsibility is contractual, without prejudice to the concurrent tortious liability of the healthcare professional.
The bill proposes a number of significant solutions in that regard:
The bill could also help to resolve malpractice claims more quickly – especially given that the court expert's reference to guidelines and best practices in the scientific community should result in an innovative approach to assessment. Given the technical nature of the subject matter, the courts decisions are unlikely to differ from the court expert's assessments.
Other notable innovations that the bill proposes include:
It remains to be seen whether following parliamentary debate and further examination by expert committees the bill will be able to dispel the uncertainty surrounding the healthcare system's financial wellbeing, which is one of the greatest obstacles to private, domestic and international investment.
For further information on this topic please contact David Maria Marino or Vito Bisceglie at DLA Piper Italy by telephone (+39 02 80 61 81) or email (firstname.lastname@example.org or email@example.com). The DLA Piper website can be accessed at www.dlapiper.com.
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