Tag Archives: Defensive Medicine

The Italian Constitutional Court Reaffirms Freedom of Doctors in Choosing Appropriate Care

On December 9, 2015 the Italian Ministry of Health had issued a much debated decree (also known as Decreto Appropriatezza). The decree listed a number of health services, with a particular focus on diagnostic tests, and limited the ability of a doctor within the National Health Service to prescribe them.

The aim of the decree was to limit the so-called “defensive medicine”, which plagues many health systems (see our previous post on medical malpractice and defensive medicine) and has been defined as follows:

“Defensive medicine in simple words is departing from normal medical practice as a safeguard from litigation. It occurs when a medical practitioner performs treatment or procedure to avoid exposure to malpractice litigation. Defensive medicine is damaging for its potential to poses health risks to the patient. Furthermore, it increases the healthcare costs. Not the least, defensive medicine also paves way for degradation of physician and patient relationship.”

The Ministry of Health intended to limit the ability of doctors to prescribe diagnostic tests to predetermined cases and conditions when they were deemed to be appropriate. Many doctors disliked the constraints (as well as the possible sanctions, subsequently lifted) denoted in the decree, which implied strong limitations to the “divine profession” and a fundamental distrust of doctors’ own judgment.

In a recent decision (Judgement no. 169 of 2017), the Italian Constitutional Court provides an interpretation of the decree that strongly favors freedom of physicians in their prescription activities. The Constitutional Court states that the decree can be regarded as being consistent with the Constitution only if it is interpreted as a mere recommendation to doctors, who must remain bound only by their personal judgment based on science and on their conscience. The judgment touches upon many other interesting principles, and an analysis of it can be found here.

In conclusion, the Court found that constraining doctors’ decisions would result in a breach of the constitutional right to personalized and effective health care. It also stated that decisions on appropriateness of health services cannot be based on political or economic rationales, but must always be filtered through the autonomous and responsible judgment of doctors.

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Medical Malpractice in Italy: New Promises for Old Issues

On February 28, 2017, the Italian Parliament approved a long-awaited act, aimed at providing new tools to improve the quality of health care services and to fight the downsides of the so-called defensive medicine.

The act has been proposed and announced as a historical step for Italian health care legislation by Federico Gelli, head of the health care committee of the Italian Democratic Party.

The bill, in its 18 articles, offers a new comprehensive regulation of major aspects of medical malpractice and related issues, such as litigation management and insurance.

  • Article 2 and 3 introduce new administrative authorities: the health protection authority and the national observatory on health care good practices;
  • Article 5 formalizes and regulates the publication of guidelines and good practices for better visibility and increased certainty;
  • Articles 6 and 7 (re-)define the nature and limits of criminal, contractual and tortious liability of health care professionals and hospitals;
  • Article 8 introduces compulsory ADR mechanisms to reduce (discourage?) court litigation;
  • Article 10 establishes insurance obligations for public and private hospitals and health care professionals;
  • Article 12 allows direct compensation from insurance companies to victims of medical malpractice;
  • Article 14 creates a guarantee fund for medical malpractice victims.

Everything looks very promising, at first, but medical malpractice is a too delicate and too complicated subject to think that a simple act could really solve all the outstanding issues.

For example, Italian lawyers and health care professionals certainly remember the goofy attempt to limit health care professionals’ liability by the Italian legislator in 2012 that was not upheld by Italian courts’ decisions, thus nullifying the legislator’s intentions.

From another angle, compulsory ADR mechanisms and insurance obligations always carry the risk to become an obstacle to the effectiveness of the rights of individuals, if not a gift to insurance companies.

Lastly, it is worth noting that the ambitious goals set forth by the Italian legislator would have to be achieved without any additional public investment, as article 18 of the act expressly prohibits such spending. Indeed, it is hard to predict whether a true improvement of health care safety is achievable – automatically and free of costs – just because of a new bill.

In order to have a better understanding of the true potential of the new legislation, stay tuned for more reflections, which will appear on this blog.