Studio Legale Puliatti — Healthcare, Civil, Administrative Law

It is well known that in recent years there has been an exponential increase in disputes aimed at identifying a doctor's professional liability. However, in the majority of cases, such liability is excluded — particularly in criminal disputes — thanks to an effective, careful, and comprehensive defense.

Law no. 24/2017 (so-called Gelli Law) attempted to establish clear rules on the matter, but jurisprudential interpretation does not yet appear consolidated.

The doctor's conduct must have been a necessary condition for the harmful event, with a high degree of rational credibility, and excluding the existence of alternative factors.

The Supreme Court of Cassation has ruled that the violation of the duty to inform the patient can cause two distinct types of damage:

1. Damage to health — when it is reasonable to believe that the patient, if properly informed, would have avoided the procedure and its invalidating consequences.
2. Damage from violation of the right to self-determination — patrimonial or non-patrimonial prejudice (of appreciable severity) other than the injury to the right to health.

The doctor who operates in a private facility, whether an employee or not, always has the duty to inform the patient of any organizational or structural deficiencies. Failing to do so, he/she is jointly liable with the facility for the resulting damage.

As for the medical record, the jurisprudence of legitimacy constantly holds that its defective keeping does not exclude the causal link, but rather allows recourse to presumptions based on the criterion of "proximity to proof".

The private healthcare facility concludes an atypical hospitalization contract (or healthcare assistance contract) with the patient, under which it undertakes to provide adequate healthcare.

Consequently, the clinic is directly liable to the patient for:

• Organizational deficits of the facility;
• Errors of the medical or paramedical staff.

These principles must be applied on a case-by-case basis, in order to identify the elements that can establish or relieve the medical professional of liability, where the event is linked to the objective uncertainty of medical science.

The Firm offers specialized consulting in medical trade union law, with particular reference to the study of:

• National Collective Labor Agreements for Medical Management and the Healthcare Sector;
• National and decentralized Collective Agreements for General Medicine, Free Choice Pediatrics, Outpatient Specialists.

The Firm provides legal consulting to various Medical Trade Unions and Public Administrations.