Last 8 March, came into force the law Gelli White who made significant reforms to the discipline of medical liability in both civil and criminal.
Before considering the merits of introducing new legislation neo, it is appropriate to examine the framework previously in force, both in legislative terms that jurisprudential.
Medical liability law BEFORE Gelli
With regard to the statutory profile, doctrine and jurisprudence have always framed the liability of the health care profession for damages resulting from malpractice contract nell'alveo or qualified social contact. A regime, this, strongly supports the patient is on the floor of the burden of proof on the prescription profile.
In particular: the patient who was acting for contract termination, for damages, or for the fulfillment had to give evidence of negotiation or legal source of his right, limiting themselves to mere allegation of the condition of the counterparty, while the debtor defendant was burdened from the burden of proof in extinguishing, consisting dall'avvenuto fulfillment.
The injured who brought an action alleging the incorrect health of the obligation was, then, You must prove to the contract and / or contact with your doctor and attach the failure of the latter, substantial aggravation of the disease or emergence of new diseases leave of, being at the expense obligor – the health and the institution within which he operated – proof that the service had been performed diligently and that pejorative outcome had been determined by an unexpected and unforeseeable event.
Vertendosi regarding contractual liability burden constituted doctor, to avoid the condemnation, show that there had been no failure on its part, or, if there had been breach, prove that the failure of the intervention it was up by factors beyond its control. Such evidence was provided showing that he has observed, in the execution of the health service, diligence normally payable by a doctor holding the same degree of specialization.
The hospital was also subject to contractual liability, the source of which resided, according to the Supreme Court of Cassation, the cd. “cost of hospital atypical contract“.
In the light of what has previously been exposed, He descended a patient's system to protect damaged that, on the one hand, He would have more chances to meet his claim for damages, given the ten-year limitation and, Moreover, He should have limited itself to attach the breach, demonstrating that the intervention of health had not been executed to perfection, without keeping the medical canons of art.
The responsibility of the health care reform AFTER
Through the law Gelli White has decided to bring the responsibility of the health of malpractice within the non-contractual, with considerable repercussions on limitation that the burden of proof, while the responsibility for health facility remains within the fold of contractual liability.
The patient who complains of an injury resulting from therapeutic and surgical activity not performed diligently and, I've been unsuccessful auspicious, It will have just five years to promptly activate their right. moreover, the same will be required not only to attach, but try the tort, the damage, the subjective element and the etiological link between conduct and event.