La responsabilità civile dell’«esercente la professione sanitaria»

During the last 15 years Italian Medical Malpractice Law has become something different from other sub-systems of Tort Law. For instance, the “Social Contact” doctrine led to an unexpected and overruling case law, making Medical Malpractice Law a sort of Contract Law-like field, with huge consequences on the burden of proof as well as on the timing due for the statute of limitations. Still, high amounts of damages are granted by domestic judges on behalf of patients. All these features, jointly considered, actually increased Medical Malpractice litigation rate and as a consequence the Italian insurance market is presently dealing with a deep crisis, while the costs for defensive medicine are becoming more and more burdensome for the Italian Public Health Service, namely the “Servizio Sanitario Nazionale”. To face these issues, the Italian legislator is trying to take advantage of its traditional tools, as a recent statutory law, namely the so called “Decreto Balduzzi”, can easily testify (section 3 of the law decree September, 13, 2012, n. 158, final text dated November, 8, 2012, n. 189). While Decreto Balduzzi refers to the use of clinical practice guidelines in order to assess medical negligence and limit the amount of damages, it seems to leave the “Social Contact” doctrine in order to return to Tort Law. Nevertheless, Italian Courts’ decisions still settle Medical Malpractice cases in contrasting ways. The aim of this paper is to try and offer a possible path for interpreting “Decreto Balduzzi”, starting from its literal meaning, with particular focus on its range of applicability and criterion for damages quantification.