Medmal newsflash (Italy)

On February 28, 2017, the Italian Parliament approved a draft law which would introduce new regulations relating to professional medical liability and medmal coverage (the Proposed Law).

The Proposed Law is expected to be published on the Italian Official Gazette at the end of March and will become effective 15 days thereafter.

The objective of the Proposed Law is to increase the involvement of insurance companies in the resolution of disputes relating to medmal and simultaneously lessen the concerns that medical practitioners currently have regarding potential claims, thereby freeing them to perform their work with greater security and serenity, in the best interest of their patients.

For insurance companies active in the Italian medmal sector, these are the main points of the Proposed Law to be aware of:

• All healthcare facilities have contractual liability towards their patients in the event of negligence of their employees or free-lance professionals working at their premises.
• Physicians have tortious (not contractual) liability towards their patients for negligence, unless a specific agreement has been entered into between the physician and the patient indicating otherwise.
• An ordinary court in Italy can hear medmal liability claims only if the claimant has either: (a) carried out mediation, or (b) requested a preliminary technical expertise proceeding (the Proceeding) aimed at settling the dispute. At the Proceeding, the participation of all interested insurance companies is mandatory. Any interested party not participating at the Proceeding will anyway have the burden of paying the costs of the Proceeding, regardless of its outcome. At the Proceeding, the insurance companies will be asked to formulate a settlement offer to the claimant, or to indicate the grounds for dismissal of the claim. In the event that the insurer(s) do not present a settlement offer, and the results of the subsequent proceeding are in favor of the claimant, then the decision will be sent immediately, by default (ex officio), to the Italian Regulator, IVASS.
• Insurance is compulsory for all types of healthcare facilities (public, private and mixed) to cover negligence in the rendering of professional services by: physicians and medical staff, as well as freelance professionals working for the healthcare facility, researchers and other professionals who work for companies that are formally convenzionato (i.e., have an agreement of license/collaboration/membership) with the Italian National Healthcare Service, as well as professionals delivering advice through telemedicine channels.
• Insurance policies issued in favor of healthcare facilities on a claims made basis shall provide a retro-date of a minimum of ten years and, in the event that the insured’s professional has been terminated, the policy shall provide a discovery period of ten years.
• The damaged party is allowed to bring the claim directly against the insurer.