Solidarietà e rivalse nella responsabilità sanitaria: una nuova disciplina speciale.

Translated title of the contribution: [Autom. eng. transl.] Solidarity and revenge in health responsibility: a new special discipline.

Research output: Contribution to journalArticlepeer-review

Abstract

[Autom. eng. transl.] The regulation in question intervened to regulate the right of recourse exercisable, against the "healthcare professional" to whom the harmful conduct was attributed, by the healthcare facility that provided for the compensation of the injured patient, following a judicial sentence or in based on an out-of-court title. In particular, the art. 9 of Law n. 24/2017 (the so-called Gelli - Bianco law), both the "compensation" of the private structure and the "Action for administrative responsibility" exercisable by the public health facility in relation to the employed or contracted and devolved doctor, in line with tradition, are the rules to the jurisdiction of the Court of Auditors. There are many innovations in this regard. First of all, in line with what was already provided for in 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 health care by way of fraud or gross negligence. The specialty of the provision of health services would justify "ex se" an exception to the ordinary regime referred to in Articles 1228 and 2055 of the Italian Civil Code, as a rule reconnecting instead to the public nature of the relationship that links healthcare and employee structure (or rather to the existence of particular conditions of the employment contract that binds these subjects). Furthermore, procedural rules are foreseen which, in the event of recourse or administrative liability action, include decadential terms and impose, beyond the case in which the doctor was agreed together with the structure in the compensation proceedings, the formation of a proof of responsibility of the healthcare professional in the judgment of recourse, preventing the enforceability in that seat of judicial checks of responsibility or of a previous settlement agreement. Finally, significant limits are also envisaged on the "quantum" of the compensation, in line with the disciplines in point of reimbursements present in other areas where the grave responsibility on auxiliaries called to perform delicate services and connected to the pursuit of publicity purposes (think to the magistrates). On a general evaluation plan, in the context of the "civil" choices of the Law n. 24/2017, that played on the limitation of the recourse therefore contributes with that relating to the (extra-contractual) nature of the responsibility of the doctor in pursuing clearly a "lightening" of the doctor's position within the health responsibility system.
Translated title of the contribution[Autom. eng. transl.] Solidarity and revenge in health responsibility: a new special discipline.
Original languageItalian
Pages (from-to)769-780
Number of pages12
JournalIL CORRIERE GIURIDICO
Publication statusPublished - 2017

Keywords

  • responsabilità
  • rivalsa
  • solidarietà

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