The case of Michele Merlo, a young Italian singer-songwriter who died in May 2021 due to a cerebral hemorrhage caused by a fulminant leukemia which, in a few weeks, caused his death, is sadly known. The fact came to the attention of the Public Prosecutor’s Office following the complaint of the singer’s family members, who asked to assess the responsibility of the health workers who, in the last period, had visited Michele, apparently without reaching a correct diagnosis. In particular, the GP had examined him in April for the sudden appearance of large bruises on his legs and for a general feeling of tiredness. The doctor, as far as he knows, would have linked the symptoms to stress and a recent move made by the young man during which, probably, he would have caused bruises while transporting the furniture.
The doctor-patient relationship
The investigations are still ongoing, however, the tragic story offers the starting point for a reflection on the legal nature of the civil liability of the general practitioner (general practitioner) and on the existence of a co-responsibility of this health care provider with the Region or the ASL of reference in case of medical error. With regard to the first issue, relating to the nature of the civil liability of the general practitioner, it should be noted that the current legislation – the Gelli Bianco Law – provides that the doctor, if not in specific cases, responds in an extra-contractual manner pursuant to art. 2043 of the Italian Civil Code and, therefore, only in the case of the commission of an illegal act. In other words, the healthcare professional held responsible, and called to compensate the patient, only when it is proven that the damage to the patient was caused by an unlawful professional conduct, characterized by willful misconduct or negligence. Therefore, there is no contractual relationship between doctor and patient, a relationship that, instead, the patient concludes with the health facility, private or public, in which the health worker operates.
The health facility has, in fact, an obligation to supervise its employees and is contractually liable for the damage caused by its doctors. For this reason, the structure is often directly involved in civil cases relating to health responsibility, also by virtue of the greater solvency of the hospitals and the less onerous burden of proof weighing on the patient, in the regime envisaged for contractual liability. In the case of the general practitioner, however, part of the doctrine has long supported the configurability of the contractual nature of the relationship between doctor and patient. The motivation looked at the peculiarity of the relationship of this doctor with his patients, free to choose and change it according to the places available, but also to the relationship of trust. In fact, the choice of the general practitioner is often based on the patient’s free expression and, therefore, would assume the typical characteristics of the contractual relationship. The jurisprudence of the Supreme Court, however, also tends to configure this liability as non-contractual. First of all, starting from a careful reading of the current legislation, we tried to guarantee a homogeneous treatment for all healthcare professionals.
The obligation of surveillance of the Local Health Authorities
Furthermore, it was found that, often, the general practitioner not freely chosen by the private citizen, but assigned by the ASL on the basis of residence, without having previously established a trust relationship suitable for generating, by law, a relationship of contractual nature. Moving on to the second topic, for a long time the jurisprudence of the Court of Cassation and of merit denied a duty of control and surveillance by the Local Health Authorities (ASL) on general practitioners, consequently excluding the existence of co-responsibility in the event of harm to the patient. However, the jurisprudence of the Supreme Court from 2015 to today has changed its orientation significantly and, according to this new direction, an obligation of surveillance and control by the Region of the work of the general practitioner has been recognized, through the competent local health authorities. From this it follows that, in the event of damage to the patient, the first subject to respond, and on which the compensation burden falls, is the entity that, in the second instance, can be claimed against the doctor.
The radical change in orientation found its reason in the type of relationship that exists between the general practitioner and the National Health Service, then declined at the regional level in the individual ASLs In fact, the general practitioner is not self-employed, but is subject to a para-subordination relationship with the National Health Service. In fact, the SSN, through the ASLs, must guarantee citizens a general medical service throughout the national territory, which has always been guaranteed through the services of the general practitioner. One of the consequences of this approach is the exclusion of all payment obligations on the part of the patient for the services received by the general practitioner, who is paid by the Region by virtue of specific agreements. The absence of full working autonomy of the general practitioner and the existence of a contractual relationship therefore justifies the duty of the ASL to control the activity performed by the healthcare professional, with consequent co-responsibility in civil proceedings, in the event of fact illegal, to the detriment of the patient, committed by the healthcare provider. The injured party or his heirs, in fact, may request compensation for the damage caused by the erroneous conduct of the general practitioner, in the first instance, to the ASL by virtue of the aforementioned obligation, imposed on the SSN and ASL itself, to guarantee the services health services on the national territory by means of subordinate or affiliated health workers.
* Antonio Serpetti lawyer and author at Giuffr-Francis-Lefebvre
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