The defendant doctor may sue the obligated insurer

The defendant physician may request the summons of the health facility's insurer for cases of civil liability arising from compulsory insurance under the Gelli-Bianco law. This was established by the Constitutional Court with sentence 170, filed yesterday, by which Article 83 of the Code of Criminal Procedure, which instead prohibited the summons, was judged partially illegitimate.

The issue had been raised by the court of Verona, in a culpable homicide case against a medical manager, who had asked to sue, as civilly liable, the insurance company of the public health facility where he worked.

For the Court, in the case examined, the same unjustified disparity of treatment emerges between the defendant subject to an action for damages in the criminal trial and the defendant with the same action in the civil trial, already found in previous judgments 112 of 1998 and 159 of 2022. In fact, observes the Consulta, the insurance of healthcare facilities for the civil liability of the medical personnel they employ, for the hypothesis that this personnel is called upon to answer in its own right for the damage, is a mandatory insurance.

It should also be recalled, the Court warns, that one of the objectives of the law, with the provision of compulsory insurance and its regulation, is to guarantee a more serene exercise of the activity of medical personnel, "characterised by intrinsic and ineradicable margins of risk and by a growing exposure to compensation claims by patients, passing on, among other things, the costs of insurance coverage of the relative civil liability to the healthcare facility for which the personnel work".

An objective that would risk being missed if the doctor could assert the right to indemnity from the insurer only 'downstream' of his own conviction, with the risk of having to satisfy the injured party's claims with personal resources in the meantime. These are, therefore, the Consulta states, measures that also aim to counter the dynamics of defensive medicine. The decision, for reasons of systematic consistency, also declares the illegitimacy of Article 10, paragraph 2, of the same Law 24 of 2017, concerning doctors practising in a free-professional regime.