A look at what constitutes medical liability in Italy.
Italy operates on a civil law system, which is based on Roman law. Civil law as a legal system is often compared with common law, which is used in most countries that can trace their heritage to Britain, including the United Kingdom, United States (except Louisiana), and Canada (except Quebec), and other former colonies of the British Empire. The main difference between the two systems is that civil law judgements are based on the interpretation of the civil code, which the judges must then apply in all cases, whereas common law judgements may be affected by the rulings in other cases. This difference explains why the civil law is usually defined as “professors’ law” and the common law “lawyers’ law”.
The differences between the two legal systems also influence the medical liability laws. For example, in the Italian civil law system a claim for medical malpractice is based on one element, which is personal injury sustained (lesioni personali colpose). In most common law systems, in order to claim successfully four legal elements have to be present: duty of care, breach of duty, injury and proximate cause. This theoretically makes damage claims for medical malpractice easier in Italy.
Not only is a medical practitioner liable in a civil court (tribunale civile), but also in a criminal court (tribunale penale). The Italian criminal code defines personal injury sustained as “an event which, even if unintentional, occurred due to negligence, imprudence, inexperience or failure to comply with laws, regulations, orders and disciplines” (art. 43, Italian criminal code).
Negligence (negligenza) consists of lack of care, reflected in the omission of necessary precautions. For example, when the surgeon leaves clips, instruments or gauze sponges in the surgical wound, operates on healthy limbs/ organs, does not control the date of the expiry of drugs or fails to provide necessary preliminary investigations.
Imprudence (imprudenza) consists of a given medical action without taking all the precautions that common experience suggests are necessary, for example if a surgeon performs complex and delicate surgery despite knowing that he is not in perfect physical condition, or without having the appropriate equipment, or performs particularly challenging surgery without having the capacity to do so.
Inexperience (imperizia) consists of inadequate training in activities which require specialised technical knowledge, and implies a deficiency of practice, intuition, capacity and observation. For example, when the doctor falls short of the minimum skills and technical expertise or in the misdiagnosis of a simple case.
Medicine is notorious in the legal world for its elements of uncertainty, complications or unpredictable reactions due to scientific progress, which make it difficult to grade the performance and results of medical practitioners. However, in the field of cosmetic surgery the patient willingly consents to a procedure where the practitioner is not under the duress of urgency or the necessity of disease.
Each year there are approximately 600,000 operations of cosmetic surgery in Italy. In the thriving and colourful market of plastic surgery the economic crisis does not seem to have had an impact. The pursuit of beauty and the continuous struggle against the signs of ageing, if anything, have led to more advertising of aesthetic operations. As the desire to turn to the scalpel for solutions has increased, so too have accompanying claims for damages and unsuccessful operations (malpractice).
In Italy no specialisation is required to operate in the cosmetic surgery sector: a generic degree in medicine and surgery is sufficient. In a sector of medicine that offers higher earnings, the risk of attracting inexperienced medical practitioners is great. This, together with the availability of black market products such a collagen, botulinum toxin (commercially known as Botox), hyaluronic acid and prosthetic implants, places cosmetic surgery patients at risk. It is therefore important that patients choose a cosmetic surgeon with great caution.
In the sector of cosmetic/aesthetic surgery the notion of medical liability is elevated because the patient requests a specific procedure with specific results to which they consent. In order for a patient to give their consent by law they have to be fully informed of the nature of the procedure. This requires, of course, that the patient be made aware of all aspects both medical and surgical: the surgical techniques used, the type of operation, the prosthesis that may be used, products administered before, during and after the operation, the results obtained and the foreseeable risks.
If a procedure does not produce the desired result, the lack of information given by the medical practitioner, or incomplete or false information, immediately constitutes a civil and criminal liability on the part of the practitioner. The legal implications can be very serious for the surgeons and make them liable to compensation for all damages suffered.
Damages payable may be summarised into the following categories: patrimonial damages (in other words damages to your assets, i.e. your body), biological/aesthetic damages, moral damages and psychological suffering. Because there is a professional relationship between the surgeon and the facility or hospital where the procedure is performed, a recent Supreme Court ruling held both the surgeon and the medical facility in which an unsuccessful procedure was carried out liable for the damages suffered by the patient.
The statute of limitations in Italy allows for patients to make claims for medical malpractice up to ten years after they occurred, unlike most common law countries, where this is limited to five years.
Future topics will cover inheritance, insurance and accidents. We also welcome any suggestions that readers may have. Please send these either to editorial@ wantedinrome.com or contact the law firm www.annino-lawfirm.com directly.
Previous articles in this series
3 April. Buying property in Italy
8 May. Italian criminal trials
5 June. Leasing an apartment
3 July. The Condominium Handbook
7 August. Healthcare: Service or Sufferance