Gelli-Bianco Law of 2017: Mandatory Insurance for Doctors

With the introduction of the Gelli-Bianco Law, numerous changes were made within the healthcare sector, which involved many of its protagonists (citizens, doctors, healthcare facilities, lawyers). The law came into force on 1 April 2017 with the aim of innovating the field of health safety and, above all, medical professional responsibility. A significant provision which introduced important changes in the discipline of «health responsibility».

What has changed for Citizens, Doctors and Healthcare Facilities?

For the citizen, the law has not directly brought about major changes. Before the establishment of the Gelli Law, the safety of care was already a constitutive part of the right to health. However, the provisions that should now allow greater ease of access to one’s health data and documents have been modified: the Structure, in fact, has the obligation to release a copy within seven days of the request.

More significant, however, are the changes for the figure of the Doctor and the Healthcare Professional. The law, in practice, discouraged civil action against individual NHS workers. The doctor’s responsibility has taken on an extra-contractual nature, definitively dismissing the theory of «social contact», consequently the patient is incentivized to only sue the healthcare facility, against which he will be able to benefit from a presumption of guilt, as well as a longer limitation period. Furthermore, the burden of proof regarding fault falls on the injured patient, not on the professional, and the compensation action expires in five years.

Few but significant changes have been made in relation to healthcare facilities. The latter’s liability for the administration of inadequate or unsafe care was, and remains after the Gelli Bianco law, of a contractual nature. Consequently, the burden of proof of non-compliance will not be on the patient but the Structure itself will have to prove that it has operated correctly. Furthermore, the patient’s right expires ten years after the fact.
The burden of proving the Doctor’s exclusive responsibility also falls on the Structure if the former intends to argue that the damage is entirely attributable to the fault of the latter rather than to its own technical-organisational deficiencies. Furthermore, the compensation obligation is divided equally between the Doctor and the Facility, unless the Facility rigorously proves serious, extraordinary and unforeseeable malpractice by the Doctor.

Medical-health responsibility

The Gelli-Bianco Law also intervened to regulate the aspect relating to the insurance of figures operating within the healthcare sector for civil liability linked to their work. In particular, for healthcare facilities it has proclaimed the obligation to have insurance or the adoption of other similar measures for civil liability towards third parties (RCT) and for civil liability towards workers (RCO). However, as regards Doctors and Healthcare Workers, there is an insurance obligation for RCT, RCO and to guarantee the effectiveness of recovery actions. While with reference to Employees carrying out healthcare professions, the insurance obligation is provided only with regard to the risk of recourse.

The law does not provide guidance on the contents that insurance policies must include; it limits itself to indicating the types of risk to be insured and to establishing that the insurance guarantee must provide for a retroactive temporal operation (i.e. covering the harmful events that occurred in the 10 years prior to the conclusion of the insurance contract) and an ultraactive temporal operation (i.e. guaranteeing compensation requests presented for the first time in the following 10 years).
Consequently, it has become necessary for those who work within the healthcare sector to take out a Civil Liability, Cyber ​​Risk and Damage to Property and Contents policy.