La legge Gelli-Bianco ed i “rapporti interni”: rivalse e regressi

Translated title of the contribution: [Autom. eng. transl.] The Gelli-Bianco law and "internal relations": revenge and regress

Research output: Chapter in Book/Report/Conference proceedingChapter

Abstract

[Autom. eng. transl.] the discipline in question intervened to regulate the right of recourse exercisable, against the "health professional" to whom the harmful conduct is attributed, by the health structure that has provided compensation for the injured patient, following a judicial sentence or in based on an extrajudicial title. In particular, art. 9 of L. n. 24/2017 (the so-called Gelli - White law), regulates both the "recourse" of the private structure and the "Action of administrative liability" that can be exercised by the public health structure in relation to the dependent or agreed doctor and devolved, in line with tradition to the jurisdiction of the Court of Auditors. There are many innovations made in this regard. In the first place, in line with what was already provided for by the special discipline of compensation to the public doctor, art. 9 limits the action to the case in which the harmful conduct is attributable to the healthcare professional by way of willful misconduct or gross negligence. The specialty of the provision of health services justifies ex se a derogation from the ordinary regime referred to in Articles 1228 and 2055 of the Italian Civil Code, as a rule instead connected to the publicity nature of the relationship that binds the healthcare structure and the employee (or to the existence of particular conditions of the employment contract that binds these subjects). In addition, there are procedural rules which, in the case of recourse or of administrative liability action, contemplate decadent terms and impose, except in the case in which the doctor has been agreed together with the structure in the compensation judgment, the formation of a proof of responsibility of the healthcare professional in the judgment of recourse, preventing the possibility of judicial verification of liability or a prior settlement agreement in that venue. Finally, there are also significant limits to the recourse quantum, in line with the disciplines at the point of recourse present in other areas where serious liability for auxiliaries called to perform delicate services and connected to the pursuit of purposes including publicity (think of the judges) . On a general evaluation plan, in the context of the "civil" choices of Law no. 24/2017, the one played on the limitation of the recourse therefore concurs with that relating to the (non-contractual) nature of the liability of the dependent doctor in clearly pursuing a "lightening" of the doctor's position within the health liability system.
Translated title of the contribution[Autom. eng. transl.] The Gelli-Bianco law and "internal relations": revenge and regress
Original languageItalian
Title of host publicationRisarcimento del danno e assicurazione nella nuova disciplina della responsabilità sanitaria (l. 8 marzo 2017, n. 24)
EditorsM. Faccioli, S. Troiano
Pages53-73
Number of pages21
Publication statusPublished - 2019

Keywords

  • Responsabilità medica
  • Rivalsa

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