Medical liability: the derby between the Gelli law and the Foti regulations

- the declination of gross negligence and its excuses are completely different. Generally speaking, the excuses for gross negligence all relate to provvedimental activities (clarity and precision of the rules, prevailing case law, reference to opinions of the competent authorities). On the contrary, for medical practitioners it is a matter of material circumstances such as 'factual situations of particular difficulty, also of an organisational nature, of the public health or social health structure in which the health professional has operated'.

- in the case of pecuniary damage, the ceiling for compensation under the Gelli law is a maximum of three years' salary, a limit that has now been reduced to two years' salary under the recent law;

- in the event of a final conviction by the Court of Auditors, for the generality of employees, there is a risk of a suspension of up to six months from office and the opening of the procedure for the possible revocation of the same; for health professionals, there is a three-year freeze on higher appointments and a 'demerit' in competitions (Article 9(6) of Law 24/2017);

- the conclusion of an insurance policy is compulsory for health care providers, but for the one introduced by law 1/2026 we will have to talk about it in 2027, hoping that in the meantime the many obscure points of the rule will be clarified, starting even with the recipients themselves.

The first comments from magistrates and scholars are by no means unequivocal. There are those who believe that law 1/2026 applies in its entirety also to medical doctors, there are those who resort to the Latin brocardi (lex specialis derogat generali) to highlight the fact that Gelli is a special law, and there are those who believe that the most favourable rules apply to doctors and other medical doctors in a sort of regulatory patchwork; provided that it is then easy to establish what is more favourable. In any case, one of the first pronouncements of the Court of Auditors was the order of the jurisdictional section of Apulia no. 11 of 25.2.2026, in which the question of the legitimacy of the Foti law was referred to the Constitutional Court and, as chance would have it, the specific dispute concerns a doctor.

I am of the opinion that the drafters of the recent law did not even consider the problem of coordination, because it has been considered for years that the concept of 'public administration' does not in many respects include public health, for which, objectively speaking, there are dozens of special rules.

Nonetheless, on a concrete level, I am reminded of a concrete case that happened to me personally years ago and that would be a nice test of the enforceability of the rules we are talking about. In a public works project involving the installation of a new CT scan, at the time of the final inspection it was revealed to my dismay that the room where the scan was housed had not been provided with the cubic capacity required by law for the correct absorption of radiation in the specifications or in the design. Those responsible for the 'trouble' and the consequent financial damage - regardless of their role as designer, RUP, DEC or otherwise - were a civil engineer, a clinical engineer, a physicist and a radiologist. Is it conceivable that, in the event of acknowledged gross negligence, the first two would pay up to twice their salaries and the others three times as much? The example is didactic, but the magistrate who would have to manage such a procedure with all the associated uncertainties and regulatory entanglements is supposed to ask for a leave of absence.