In the event of an unexpected occurrence with a patient in the medical field, a type of social contact liability occurs in the medical field when, despite the absence of a specific contract between parties, contractual rules are applied.
Medical liability is quite unique since, at present, both contractual and Aquilian (or non-contractual) are in force, based on the period in which the events occur and on the basis of the subject to which they are contested (medical personnel or structure).
A doctor is a professional who is burdened with protection obligations towards patients, even if their interactions are often casual and occasional. By virtue of the legal nature of liability, doctors are liable for damages caused by negligence, by virtue of the social contact that has been established.
Qualified social contact
According to the interpretation of social contact, the relationship that is established between the doctor and the patient is a qualified one, as the doctor is a professional with whom one approaches intentionally and not by quisque de populo (any person who meets by chance) and thus their relationship cannot be considered a relationship between two strangers, in which the only obligation is “neminen laedere” (to not offend).
The provision of the doctor automatically implies an obligation of protection towards the patient and the protection of their health. If their behavior somehow affects the patient’s well-being, the doctor is at fault. Obviously, once social contact has been demonstrated, the professional must demonstrate that they have maintained diligent conduct.
This can be traced back to 1999, the year in which the jurisprudence (ruling) accepted de facto contractual relations, the same year that sentence n. 589 of the Court of Cassation was passed, when the notion was applied to the relationship between the doctor (dependent on the national health service) and the patient.
The sentence states: “the obligation of the doctor dependent on the national health service for professional liability towards a patient is contractual in nature, although not based on a physical contract but by social contact, characterized by the trust that the patient places on the professional. With regard to this liability, as for that of the managing body of the health service, the regimes for the sharing of the burden of proof, the degree of guilt and the prescription are those typical of professional intellectual work contract obligations”.
If you accept the application of social contact liability, the doctor will act in accordance with article 1218 of the Civil Code, the debtor’s liability: “the debtor who does not perform exactly the due service is required to pay damages if not proven that the default or delay was determined by the impossibility of the service deriving from a cause not attributable to them”.
This occurs, and is still valid, for all those events that precede the entry into force, in 2017, of the Gelli – White law.
The Gelli – White Law
The introduction of the Gelli – White Law, containing “Provisions on the safety of care and the assisted person, as well as on the professional liability of operators of health professions” in 2017 redefined the matter, creating a distinction in the treatment of facts before and after, not being the same retroactively.
The “Gelli – White” law established that healthcare personnel are liable for their work on an extracontractual basis, “unless they act in fulfilling the contractual obligation assumed with the patient”, that is, following an explicit agreement.
The health professional (anyone who works in any capacity in a health facility) will respond following the directives of article 2043 of the Civil Code Compensation for unlawful act: “any intentional or negligent act, which causes unjust damage to others, obliges the perpetrator to compensate the damage”
If the doctor responds on a non-contractual basis to his own work, he has no particular duties regarding the burden of proof, which instead falls to the patient, who must clearly demonstrate that there is a causal link between the doctor’s work. and the reported damage.
The intent of the Gelli – White law is to prevent the arrival of a type of “defensive” medicine, an attitude that would be counterproductive in the first place for the patients themselves, and that there is a less onerous responsibility for those who practice a profession in the field. health.
The distinction remains between those who work in any capacity at a healthcare facility and the healthcare facilities themselves, both private and public, whose type of liability remains contractual.
Since 2017, there is an obligation for all health and social structures, both public and private, to take out adequate insurance policies to deal with situations where staff’s conduct is called into question.
This obligation is extended to all professionals who come into contact with patients, without exception, therefore including those who work intramoenia (services provided outside normal working hours by doctors in a hospital, who use the hospital’s outpatient and diagnostic facilities for private payment by the patient) or via telemedicine.
Consequently, the possibility for patients to contact insurance companies directly is available.
Before and after the Gelli – White Law
The patient who considers themselves victimized in an incident that occurrs after April 1st, 2017, faces situation of non-contractual liability and therefore, having to bear the burden of proof, they must prove that there has been a connection of causality between the damage suffered and the work provided by health personnel.
For events dating back before the Gelli – White law, the “social contact” path remains valid and applicable, and therefore the patient will only have to prove that he has suffered damage, while the healthcare personnel called into question will have to prove that their behaviour has not caused harm to the patient.
Health management bodies have the obligation to provide patient documentation within 7 days of it being requested.
Our lawyers will be able to provide you with information and explanations on social contact liability in the medical field and on non-contractual liability if you are interested in furthering the topics covered here.