Professional policies with retroactive effect, the Supreme Court 'sanctions' the reticent doctor

A doctor who takes out professional insurance with retroactive effect (on claims made) is obliged to notify the insurer of any known or perceived circumstances that may affect the assessment of the risk. A different solution would be contrary to the principle that the insurance contract requires the utmost good faith on the part of the insured, as well as to Article 1892 of the Civil Code ("Incorrect statements and reticence on the part of the policyholder, relating to circumstances such that the insurer would not have given its consent [if] it had known the true state of affairs, are grounds for cancellation of the contract when the policyholder has acted with malice or gross negligence").

In these terms, the Supreme Court of Cassation (Order No. 29456 of 2025) held inoperative a policy on claims made that an anaesthetist had taken out three days after the death of a patient, without informing the insurance company of this fact.

The Court of Pavia had recognised the doctor's exclusive liability and placed the obligation to pay compensation on the insurance company. The sentence was confirmed by the Court of Appeal of Milan because the doctor, at the time the policy was taken out, "had not received any request for compensation [nor] was he aware of the medico-legal evaluations expressed in the report of the panel of experts appointed by the Public Prosecutor's Office".

In its appeal in cassation, the insurance company had argued that Article 1892 of the Civil Code extends "the duty to provide information indiscriminately to all circumstances relevant to the provision of the insurer's consent" and that a clause in the insurance contract subordinated the effectiveness of the guarantee in favour of the doctor, for facts that could entail his professional liability, to the two alternative conditions that the insured "had not received, at the date of stipulation, any claims for compensation", or that "he had not had any perception, knowledge or awareness of the existence of the prerequisites for said liability". This thesis hits the nail on the head.

The Court of Cassation held that the contractual clause "gave prominence to the mere 'perception', by the insured, of the existence of the prerequisites of its liability" by the insured party of the existence of the assumptions of its liability", so that the Milan Court of Appeal "should have established whether the existence of that 'perception' was not inferable from the circumstance that, just three days before the conclusion of the contract [the patient's] unexpected death occurred". This was not without pointing out that the duty to provide information placed on the insured party "derives from the law and not from the contract, and is mandatory since - being designed to guarantee the balance between premium and risk - it is dictated in the interest of the entire group of insured parties and not of the insurer".