Qualified legal assistance in healthcare disputes
Calculate the quote
When it comes to disputes over compensation in the healthcare sector, choosing the right legal strategy can make all the difference. Whether acting against a doctor or a hospital, or opting for a Preliminary Technical Assessment (ATP) or mediation, each path has its own implications and can affect both the timing and the outcome of the compensation claim.
When a patient suffers harm – be it a misdiagnosis, a hospital-acquired infection due to poor hygiene, or a surgical error – they have the right to seek compensation for healthcare liability. This type of liability occurs when healthcare professionals or the institutions themselves make errors, omissions, or violate their obligations to the patient (for more on hospital-acquired infections, see “Nosocomial infections: clarified criteria for assessing the liability of healthcare facilities” by A. Canella).
Liability can fall on both public or private healthcare facilities and the healthcare professionals (doctors, nurses, etc.) who work there. In both cases, the law distinguishes between contractual and non-contractual liability, two legal routes with different implications. Contractual liability applies when there is an implicit or explicit contract between the patient and the healthcare facility. In this scenario, the patient has 10 years to file a compensation claim and needs only to prove that the contract existed and that the obligation was not fulfilled.
The situation is more complex when it comes to non-contractual liability, which typically applies to individual professionals who do not have a direct contract with the patient, as the contract was made with the healthcare facility. Here, for claims against the healthcare professional, the statute of limitations is 5 years, and the burden of proof is higher: the patient must demonstrate that the physician’s conduct directly caused the harm suffered.
A recent ruling by the Court of Cassation further clarified the issue: even if a doctor has settled a dispute amicably with the patient and is released from their obligation, the patient can still seek compensation from the hospital. In this case, the amount may be reduced, but the possibility of obtaining compensation is not excluded (Cass. civ., Section III, Order, 30/05/2024, no. 15216).
This legal framework clearly shows that healthcare facilities must not only monitor their own actions but also those of their employees and collaborators.
When it comes to liability for damages in the healthcare sector, the Gelli-Bianco Law (Law of March 8, 2017, no. 24) adopts a “dual track” approach, distinguishing between the liability of healthcare facilities and that of healthcare professionals. In other words, the injured patient can seek justice against either the hospital or clinic (public or private) or the doctor who caused the damage (see Art. 7, Law of March 8, 2017, no. 24).
This distinction is crucial because the two parties are held accountable in different ways. Healthcare facilities are contractually liable. This means they are responsible for any damage resulting from the failure to meet contractual obligations implicit in the provision of healthcare services to the patient during hospitalization or treatment. On the other hand, healthcare professionals — such as doctors — are usually subject to non-contractual liability. However, if there is a direct contract for services between the patient and the professional (for example, a private agreement for a specialist visit), the doctor can also be held contractually liable.
What’s the difference? In cases of contractual liability, the patient has 10 years to file for compensation, and the burden of proof is relatively lighter: it is enough to prove that a contract existed and that the obligation was not fulfilled (Arts. 1218 and 1228 of the Civil Code). In cases of non-contractual liability, however, the statute of limitations is 5 years (except in cases provided by Art. 2947, paragraph 3, of the Civil Code), and the patient must prove not only non-compliance but also that there was a direct causal link between the doctor’s conduct and the damage suffered, as established by the Court of Cassation (Cass. civ., Section III, Order, 12/05/2023, no. 13107).
One point to keep in mind is that healthcare facilities can be held liable not only for their own mistakes (for example, lack of hygiene causing a hospital-acquired infection), but also for the negligent or intentional actions of their staff, according to Art. 1228 of the Civil Code, “liability for acts of auxiliaries“. This means that even if a doctor has already settled the dispute with the patient, releasing themselves from their obligation, the patient can still pursue compensation from the hospital. As recently clarified by the Court of Cassation, this may reduce the amount owed but does not preclude compensation (literally, “in the matter of healthcare liability, the fact that the doctor has settled the dispute with the patient, releasing themselves from their obligation, does not prevent the patient from seeking compensation from the hospital; this only leads to a reduction in the amount owed” – Cass. civ., Section III, Order, 30/05/2024, no. 15216).
The “dual track” concept thus requires patients to carefully consider who to hold accountable and under which liability regime, as this can significantly impact the timing, burden of proof, and possible outcomes of the dispute.
Before being able to claim compensation for medical malpractice, the patient must go through one of two mandatory pathways: the Preliminary Technical Assessment (ATP) for conciliation or mediation. Both procedures, provided for by the Gelli-Bianco Law (no. 24/2017), are designed to attempt a quicker and less adversarial resolution of the dispute. The conciliatory ATP, regulated by Art. 696 bis of the Code of Civil Procedure, allows for a technical evaluation of the damage and encourages a possible settlement, while mediation aims to facilitate an agreement through a neutral mediator.
In the context of a healthcare liability compensation claim, the conciliatory ATP involves the execution of a technical assessment by an expert appointed by the competent judge. The expert is tasked with:
This expert report can be crucial in determining liability, and if the parties reach a settlement, the report serves as an enforceable title.
Choosing between ATP and mediation depends on the complexity of the case and the willingness of the parties to negotiate. The ATP may be more effective when a detailed technical examination is needed, while mediation can be helpful for simpler disputes where an agreement is realistically achievable in a short time. Both procedures aim to avoid the delays of a standard trial, thus reducing costs and time for all parties involved.
