LA RESPONSABILITA’ CIVILE DEL MEDICO NEL CONTESTO DELL’EMERGENZA SANITARIA DA COVID-19

Cafarelli, Serena

The research analyzes the impact of the Covid-19 pandemic on the medical liability regime in the Italian legal system. Worldwide, Italy has been one of the countries most severely affected by the SARS Covid-2 pandemic, with a remarkably high number of infected patients and an equally high number of related deaths upon contracting Covid-19. Therefore, it is likely that the “sanitary pandemic” will be followed by a “judiciary pandemic”. The emergency may expose healthcare practitioners to several claims of culpability based on negligence anytime a medical error is judged directly related to the patient’s injury, as in the event of misdiagnosis, poor treatment, or the death of Covid-19 positive people. The greatest risk is the underestimation of the complexities linked to the anomalous and unpredictable context within which the healthcare personnel have operated. Indeed, the healthcare personnel faced challenges due to resource constraints and a lack of familiarity with the virus and its pathophysiology. In the absence of specific regulations to protect physicians’ accountability, it is necessary to establish the definition of medical liability within the civil law domain by utilizing existing standards, including those outlined in the Italian civil code and in ‘Gelli-Bianco’ Law. Actually, the introduction of further rules does not seem necessary, as the in force rules allow to protect healthcare professionals and healthcare structures who operated within the pandemic context. Anyway, it is still necessary to grant an adequate protection and consolation to the damaged patients and their heirs. The recommended solution to reconcile the conflicting interests seems to be the introduction of an indemnity plan, in order to shift the potential future claims from the level of responsibility to the level of social solidarity.

The research analyzes the impact of the Covid-19 pandemic on the medical liability regime in the Italian legal system. Worldwide, Italy has been one of the countries most severely affected by the SARS Covid-2 pandemic, with a remarkably high number of infected patients and an equally high number of related deaths upon contracting Covid-19. Therefore, it is likely that the “sanitary pandemic” will be followed by a “judiciary pandemic”. The emergency may expose healthcare practitioners to several claims of culpability based on negligence anytime a medical error is judged directly related to the patient’s injury, as in the event of misdiagnosis, poor treatment, or the death of Covid-19 positive people. The greatest risk is the underestimation of the complexities linked to the anomalous and unpredictable context within which the healthcare personnel have operated. Indeed, the healthcare personnel faced challenges due to resource constraints and a lack of familiarity with the virus and its pathophysiology. In the absence of specific regulations to protect physicians’ accountability, it is necessary to establish the definition of medical liability within the civil law domain by utilizing existing standards, including those outlined in the Italian civil code and in ‘Gelli-Bianco’ Law. Actually, the introduction of further rules does not seem necessary, as the in force rules allow to protect healthcare professionals and healthcare structures who operated within the pandemic context. Anyway, it is still necessary to grant an adequate protection and consolation to the damaged patients and their heirs. The recommended solution to reconcile the conflicting interests seems to be the introduction of an indemnity plan, in order to shift the potential future claims from the level of responsibility to the level of social solidarity