Italy: Medical malpractice insurance

Law No. 24 of 8 March 2017 on the safety of care and of patients and on the professional liability of health professionals, which is effective from 1 April 2017, has introduced several significant changes regarding medical malpractice coverage, the responsibilities of insureds, the litigation process, subrogation actions and the creation of a medical malpractice guarantee fund. These changes affect individual health professionals and health or social care organisations in the public and private sectors. A full description of the changes and a copy of the law are available on Crystal via the Class specific regulations section under ‘Medical malpractice insurance’. A summary is provided below.

Medical malpractice coverage

• Individual health professionals and health or social care organisations are required to purchase third party liability insurance for tort and contractual liability.
• All individual health professionals are required to purchase third party liability insurance for gross negligence.
• A Decree will be issued that will contain the minimum requirements for medical malpractice policies.
• Policies must cover events reported during the policy period that occurred in the ten years prior to inception.

Responsibilities of insureds

• Health or social care organisations must respond to information requests within seven days.
• Health or social care organisations must publish, on their website, data about compensation paid out within the previous five years, details of their medical malpractice insurer and their medical malpractice insurance policy, including coverage details.
• Health or social care organisations must notify the individual health professional to whom a legal action relates, in writing, within ten days of receipt of the action. They must also notify the individual health professional of the commencement of out of court settlement negotiations and invite him to participate.

Litigation process and subrogation

• Third party claimants have a right of direct action against the insurer of a health or social care organisation or the insurer of an individual health professional.
• Health or social care organisations are required to notify an individual health professional of legal actions that relate to them, and subsequent out of court settlement negotiations, within ten days. If the notification is not given on time, the insurer loses its right to subrogate against the individual health professional.
• Once a legal action has commenced, both parties must participate in pre-trial mediation. There are penalties for non-participation.
• The insurer of a health or social care organisation can only subrogate against an individual health professional if the individual has committed wilful misconduct or gross negligence.
• Medical experts used by courts and in pre-trial mediation will be drawn from national registers of such experts.

Guarantee fund

• A new guarantee fund will be set up to pay compensation for medical malpractice claims where the amount of damages awarded is higher than the maximum limit of indemnity on the insured’s policy or where the insurer is unable to pay; eg due to the insurer’s insolvency or liquidation.
• The guarantee fund will be funded by contributions from insurers that are authorised to write medical malpractice insurance. Lloyd’s will collect and process the contributions from Lloyd’s managing agents centrally.