The Rise of Medical Malpractice Cases and of Defensive Medicine.  Over the last two decades, medical malpractice has become a prominent issue in the Italian healthcare debate. Medical malpractice litigation has dramatically increased, with dire reflections on prices and availability of professional liability insurance. Insurance premiums have rapidly risen and insurers have often been unable to provide insurance coverage to physicians. As a consequence, physicians have been adopting changes to their practices, by taking allegedly unnecessary precautions or by refusing treatments that may be in the patients’ best interests but may also give rise to their  complaints (the so-called phenomenon of “defensive medicine”).   Different Interpretations of Malpractice by Courts.  Such phenomenon has been exacerbated by the fluctuating approach taken by civil courts in dealing with medical malpractice cases. In fact, Italian Courts have been advancing different interpretations on the nature of the relationship between a physician and a patient.

1. Medical Malpractice as a Tort. Until 1999, liability arising from medical malpractice was deemed to be a tort. Interpreters believed that the absence of a formal agreement between the parties would trigger tort liability. As no contractual relationship was established between  physicians and patients, the latters, as injured parties, could rely  exclusively on proceedings based on section 2043 of the Italian Civil Code[1]. In light of this interpretation, medical negligence was considered to be a violation of a general duty of care, while patients bore the burden of proving damages suffered, a medical act negligent and a causation link between the two.

1. Medical Malpractice as Contractual Liability. The above view has been gradually replaced by several opposing theories, which lean towards a contractual interpretation of the relationship between physicians and patients. Accordingly, medical negligence is currently held to be the failure to fulfil a specific obligation, and liability arising from such failure has been considered as contractual liability.

The more convincing approach to define the nature of physician’s liability was introduced by the Italian Supreme Court (Corte di Cassazione) with judgment no. 589/1999. According to such judgment, physicians can be held contractually liable under the theory of  “social contact” (contatto sociale). Such theory is based on the contractual liability of physicians for breaching the duty to protect patients’ health. Given the contractual nature of medical responsibility, damages can be awarded to patients if they produce evidence of the breach of contract committed by physicians, unless  physicians are able to prove that such breach is a result of conditions not attributable to them. In other words, physicians bear the burden to prove the exact fulfilment of the contractual obligation.   A New Statutory Provision on the Role of Guidelines in Medical Practice.  By enacting Law no. 189/2012, the Italian legislator has tried to counter the spread of defensive medicine. Section 3 of the aforementioned Law states that: “The health professional who, in her medical practice, adheres to guidelines and best practices accredited by the scientific community cannot be held criminally liable for ordinary negligence. In such cases however she remains subject to the obligation set out by section 2043 of the Civil Code. The judge, even when determining damages, shall take due account of the conduct referred to above”.   Renewed Controversy on the Nature of Medical Malpractice.  Reference to section 2043 of the Italian Civil Code in Law no. 189/2012 has sparked a new debate among scholars and in courts, some of which maintained that the legislator clearly meant to endorse the tort liability theory. For example, the Court of Milan[2] has recently stated that the theory of “social contact” has been repealed by the 2012 statutory provision and that, absent a specific contractual relationship established between patients and physicians, malpractice must be deemed a tort liability.   Others[3] have pointed out that the provision of Law no. 189/2012 merely states that, in the event of ordinary negligence, the obligation to compensate damages remains, without referring to the nature of medical liability, and that nothing in the statutory provision appears to be in conflict with previous case law on the contractual nature of medical liability.   The “social contact” theory therefore still stands, but the phenomenon of “defensive medicine” has yet to find a solution. [1] Section 2043 of the Italian Civil Code translates as follows: “Any willful or negligent fact causing to a third party an unfair damage triggers the obligation to reimburse such damage”. [2] Decisions no. 9693 of July 23, 2014 and no. 1430 of December 2, 2014. [3] For example, the Italian Supreme Court states this view in its decisions no. 8940 of April 17, 2014.