The legislative reform of medical liability in Italy and the decriminalisation of ordinary negligence: controversial issues

Background: In recent years, the Italian Supreme Court stated principles that led to: a) an increase in damages awarded to patients and premiums demanded by insurance, resulting in increased health care costs, b) the birth and growth of the so-called defensive medicine with major economic repercussions.The Italian legislator has tried to remedy the spread of defensive medicine by Law no. 189/2012. Objectives: The authors illustrate the actual innovations made by the legislature in medical liability system developed by the Italian Supreme Court in the last fifteen years.The authors analyze the question of the suitability of the reform: a) to eliminate the practice of defensive medicine; b) to reduce the amount of expenditure for compensation; c) to increase the serenity of the doctors in the practice.Methods: The authors analyze the effects of the new rules and compare them with the principles laid down by the Supreme Court on negligence, contractual liability and personal injury. Results/Discussion and Conclusions: Law no. 189/2012 confirms that the guidelines are not binding. In fact, the doctor who meets the guideline can also be declared liable when the circumstances of the case made not applicable to the guideline itself.However, the legislative reform states that if the physician observes guidelines should not be applied, the penal responsibility can be established only when the conduct constitutes gross negligence of the doctor. Therefore, the legislator has decriminalised negligence.This new rule raises first issues of unconstitutionality.Furthermore, the application of a guideline also aimed to reduce health care spending could be considered as gross negligence because the Italian Supreme Court has stated that the predominance of the patient's health over economic interests of medical facilities is a basic rule.As a result, the doctor would still be convicted.With regard to civil liability, the legislative reform states that when there is ordinary negligence, the duty laid down in article 2043 of the Civil Code applies.Although the article 2043 of the Civil Code relates only to the pecuniary loss and non-contractual liability, the reform does not appear to change either the contractual nature of the medical liability or the obligation to compensate also the biological damage and the loss for pain and suffering.In fact, the law n. 189/2012 refers only to the obligation under article 2043 Civil Code, i.e. the obligation to compensate contra ius damages. As a result, article 2043 does not refer to the nature of liability, whether contractual or n