Introduction
Italian law provides for the compensation of damages ensuing from medical malpractice in a number of cases:
- wrong diagnosis
- incorrect treatment
- incorrect surgery
- organization failure on the part of a medical facility
- negligent nursing
How is the liable party identified?
The doctor, surgeon or nurse whose negligence or carelessness causes the damage is quite clearly the party held liable.
When treatment is provided at a public or private medical facility (a local health authority outpatients clinic, a hospital or a private clinic), the facility in question is always jointly liable and is so even when the culpable person is not easily identified (when the healthcare worker’s name is not known or surgery/treatment is carried out by a team of doctors, etc.).
At what degree of negligence can damages be claimed?
It is usually sufficient that the situation is found to amount to simple negligence.
An exception is made for operations that, according to current medical science, are not easy to perform: in those cases, a situation of gross negligence is required (provided that an informed consent form has been signed by the injured party or by whoever is required to give consent in his/her stead).
In cases of organization failure (e.g., when there is an unjustifiable delay in providing treatment at an A&E Department, a patient falls over in a ward because the floor is uneven or infected blood is given to a patient during a blood transfusion, etc.), it is customary that the medical facility is presumed liable: in other words, once the facts of the case are proven, it is the latter that must justify itself by deducing and proving that what happened was an inevitable accident or a due to force majeure.
What is needed to sue for damages?
In order to sue for damages and, before that, to first assess the feasibility of such a lawsuit, the following are needed:
- copy of the patient’s clinical records (or at least proof that they have been requested in the form of a letter addressed to the doctor and/or medical facility concerned and sent by recorded delivery mail). Please note that, according to the law 24/2017, there is the right of access of the injured person to the medical records within 7 days of the request
- a report by a medical expert appointed by the claimant, aimed at verifying the causal nexus with the medical malpractice and estimating the extent of the physical damages suffered.
It is advisable in cases involving admission to a hospital/clinic to also obtain the patient’s nursing records (reporting the nursing care received by the patient throughout his/her stay in the facility), if possible and if not comprised in the clinical records.