Prof. Avv. Bruno Tassone Docente di Principles of Civil Law LUISS Guido Carli

1. Medical Malpractice(Obligation) Case Study(Cass. 22 gennaio 1999, n. 589)(Cass., Sez. Un., 10 gennaio 2008, n. 577) • Prof. Avv. Bruno Tassone • Docentedi Principles of Civil Law • LUISS Guido Carli

2. The Parties • A patient undergoes a complicated hip operation, requiring manufacturing and installation of a prosthesis (the “Patient”); • The operation is carried out in a public hospital belonging to the S.S.N. (National Health System), without any intervention of private professionals, nor the conclusion of a contract with the doctors and/or the hospital (the “Hospital”); • The operation does not go well and the conditions of the Patient get worse afterwards, as he becomes cripple. • An independent medical expert advises him over the negligence through which the operation was carried out by the doctor, who is an employee of the Hospital (the “Doctor”). • Severn years after the operation, Patient brings an action for compensation against the Hospital and the Doctor (the “Claim”).

3. The Hospital’s Defenses • Hospital acknowledges that the Doctor is an employee and acted in this quality, but denies any negligence on his part during the performance of the operation. • Hospital also objects that there was no contract with the Patient, because the performance occurred while providing a public service and not through a private agreement (never entered by the Hospital). • Hospital then concludes that Claim was – and can only be - brought under tort law and that it is barred by the five years statute of limitation, because of Art. 2947 c.c.

4. The Doctor’s Defenses • The Doctor confirms he carried out the operation as employee of the Hospital, but he denies negligence too, also adding that the treatment was very difficult and so invoking the application of art. 2236 c.c. • Furthermore, the Doctor explains that – aside of the lack of any contract with the Patient and the Hospital – there was no contract neither between him and Patient. • Were the Hospital sentenced to pay damages according to art. 1228 c.c. - or not - for its relationship with the Patient, he could not be sentenced individually, as he had no obligations towards the Patient (while the action in torts is brought too late, as also the Hospital points out).

5. Questions and Patient Positions • Given that the action in torts is barred by the statute of limitation, is it possible to say that there is a “contratto di spedalità” with the Hospital, even though not a common private contract? • Given that there is no contract with the Doctor is it possible to say that there is an obligation to act towards the patient as if there was a contract, pursuant to art. 1173 c.c.? • Given that art. 2236 c.c. is applicable to the case, who has to prove negligence in performance? • Given that art. 2236 c.c. is applicable to the case, who has to prove causation between the operation and the worsening of the health conditions (e.g. that the worsening did not depend on the previous conditions of the Patient)?