Tag Archives: insurance

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.

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Artificial intelligence and robotics: a report reflects on legal issues

With its report issued on May 31, 2016 by the European Parliament (“Report”), the European Union has stepped into the debate on how to deal with artificial intelligence and robotics (“AI&R”). The ultimate goal of the European Parliament is to set forth a common legal framework that may avoid discrepancies arising from different national legislations, which would otherwise create obstacles to an effective development of robotics.

The Report introduces ethical principles concerning the development of AI&R for civil use and proposes a Charter on Robotics, composed by a Code of Ethical Conduct for Robotics Engineers, a Code for Research Ethics Committees and Licenses for Designers and Users.

Furthermore, the Report suggests the creation of a European Agency for AI&R, having an adequate budget, which would be able to generate the necessary technical, ethical and regulatory expertise. Such agency would monitor research and development activities in order to be able to recommend regulatory standards and address customer protection issues in these fields.

The Report, which recommends to the Commission to prepare a proposal of directive on civil law rules on robotics, illustrates many of the issues that society could face in a few decades regarding the relationship between humans and humanoids. In fact, a wide range of robots already can, and could even more in the future, affect people’s life in their roles as care robots, medical robots, human repair and enhancement robots, doctor training robots, and so on.

A further development that may be concerning for lawyers is connected to the announcement, a few days ago, by the University College London that a computer has been able to predict, through a machine-learning algorithm, the decisions by the European Court of Human Rights with a 79% accuracy. Will this result in a more automatic and predictable application of the law?

In order to secure the highest degree of professional competence possible, as well as to protect patients’ health when AI&R is used in the health field, the Report recommends to strengthen legal and regulatory measures such as data protection and data ownership, standardization, safety and security.

One concern arising from the Report is civil liability arising from the use of robots. Should the owner be liable for damages caused by a smart robot? In fact, in the future, more and more robots will be able to make “smart” autonomous decisions and interact with third parties independently, as well as cause damages by their own. Should such damages be the responsibility of the person who designed, trained or operated the robot?

Some argue in favor of a strict liability rule, “thus requiring only proof that damage has occurred and the establishment of a causal link between the harmful behavior of the robot and the damage suffered by the injured party”.

The Report goes even further by asking the Commission to create a compulsory insurance scheme for owners and producers to cover damage potentially caused by robots and a compensation fund guaranteeing compensation for damages, but also allowing investments and donations in favor of robots.

Exciting times lay ahead of us. It remains to be seen if the current legal principles will be sufficient or if new ones will actually be necessary.