preventive CT for conciliatory purposes is inadmissible

preventive CT for conciliatory purposes is inadmissible
preventive CT for conciliatory purposes is inadmissible
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Preventive technical consultancy has assumed a leading role in judgments aimed at asserting the civil liability, for compensation purposes, of a health facility and/or of those who practice a health profession. Indeed, paragraph 1 of the art. 8 L. 24/17 establishes that the compensation dispute in this area must be preceded by the lodging an appealpursuant to art. 696 bis cpc; and the next paragraph explicitly qualifies the lodging of said appeal as condition of admissibility of the claim for compensationexcept to allow, as an alternative to this route, the initiation of the mediation procedure pursuant to article 5, paragraph 1-bis, Legislative Decree 28/10 (for its part, Court of Verona, 26 April 2021, ruled out that a request for mere assessment of the professional medical liability of healthcare professionals, in relation to damages attributable to surgery, is subject to one of the two admissibility conditions referred to in the aforementioned article 8).

Moreover, even the mechanism pursuant to art. 696 bis cpc intends to propitiate the amicable settlement of the dispute.

However, in the dispute in which the Court of Naples intervened, by order of 9 November 2022, the spouse of a person who died for allegedly errors or omissions allegedly committed by the general practitioner who was in charge of the patient, as well as from operators belonging to the ASL with whom he had interacted, had asked for the preventive technical assessment outlined in art. 696 bis cpc

The peculiarity of the present case is that the death of the subject in question had occurred for COVID-19, during the first wave of the virus and a few weeks after the moment in which the World Health Organization had officially spoken of a pandemic.

The appellant reproached the family doctor and the ASL for «not having taken steps for urgent hospitalization; not having put in place an adequate therapeutic plan; not having treated the patient as a “suspected case” of COVID-19».

It should be borne in mind that the institution of the preventive technical consultancy aimed at settling the disputeeven disregarding the requirement of urgency, still requires the verification of the existence of the fumus boni iurisie of the probable foundation of the right likely to be enforced on the merits.

Just the shortage of fumus boni iurisunder various profiles, led the judge to deem the appeal inadmissible.

Other impediments to preventive technical consultancy may be the existence of a radical and profound conflict between the parties on the very existence of the credit, so that the assessment presupposes complex investigations not only in fact but also in law, involving issues whose solution it is possible to ask the technical consultant (Court of Cosenza 13 January 2021); or again the circumstance that the means of preventive instruction does not have the potential to exhaust all the aspects of the dispute for the purpose of reconciling the case (Court of Torre Annunziata 18 April 2018).

In the case in question, the motivation preliminarily highlights that, in the light of the factual reconstruction of the contacts between the health professionals and the patient, the former however hypothesized that the latter had been infected by SARS-COV-2, even though he presented feverish symptoms, but no breathing problems. Therefore, “any delay or error in the request for the result of the swab” is considered irrelevant. Nor are there any elements to believe that the case had been underestimated. However, even if we want to believe that it would have been preferable to arrange hospitalization before the moment in which the family members had invoked the intervention of the medical aid, an insurmountable obstacle loomed for the practicability of preventive technical consultancy.

The critical point lies in how the jurisprudence of legitimacy intends the causal link in healthcare liability actions.

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In this regard, the prevailing orientation places the burden of demonstrating the causal link on the patient, according to the “more likely than not” criterionbetween the professional’s conduct and the alleged damage, while it is up to the professional or the healthcare facility to demonstrate, as an alternative to exact performance, the impossibility of performance deriving from a non-attributable cause, proving that the incorrect performance was determined by a unforeseeable and inevitable impediment, to be understood in the objective sense of its inimputability to the agent (Cass. civ., section III, March 29, 2022, 10050; Cass. civ., section VI, 26 November 2020 n. 26907where it is specified that the demonstration of the material causal link between the conduct and the harmful event can be provided by the patient also through presumptions, thus allowing him to mitigate the condition of greater probative difficulty in which the creditor of the medical professional service normally finds himself compared to the creditor of any other service).

This entails the consequence, particularly penalizing for the patient or for his heirs or close relatives, that, in judgments for compensation for damage from medical liability, where the cause of the damage has remained absolutely uncertain, the plaintiff’s claim must be rejected (Cass. civ. section VI, 3 December 2020, n. 27612which, applying this principle, considered causally absorbing, with respect to the verification of the harmful event, the omissive conduct of the injured patient, who had failed to go to a scheduled check-up; Cass. civ. section III, 15 February 2018, no. 3704).

In professing its adherence to these principles, the Court of Naples emphasizes the fact that the appellant should have attached qualified breaches of the subjects summoned in court, highlighting thecausal efficiency with respect to the damages for which she intended to obtain compensation. According to the judge this was not done. And here the context in which the lethal pathology arose and developed plays a decisive role.

In fact, it was at the beginning of the COVID-19 pandemic, in a health situation characterized by extreme uncertainty. Thus, in the face of the lack at that time «of unequivocal indications regarding practicable and potentially effective therapies», it was immediately necessary to «attach specifically which therapeutic attitudes culpably omitted or delayed would have had a reasonable probability of success, also in terms greater chances of recovery and/or survival” (on this last point it was stated that, if the worsening of the patient’s conditions is not etiologically attributable to the inexact fulfillment of the medical obligation, it must be excluded that this failure may have causal efficiency in relation to the loss of chance of survival or improvement in the patient’s quality of life, since the judgment on the absence of the causal link can only be identical in relation to any type of harmful, actual or objectively uncertain, complained consequence from the damaged: so Cass. civ. section III, 17 October 2019, n. 26303).

The Court of Turin had reached a similar ruling of inadmissibility which, with an order rendered on 6 May 2021, had stated that when it is envisaged that the death of a person was caused by COVID-19, “the preventive technical consultancy pursuant to art. 696 bis and art. 8, Law no. 24/17 could resolve or, at least, simplify the dispute only where precise non-fulfilments of a medical-health nature are correlated with equally specific charges (in fact and in law) relating to the lack/insufficient infectious disease surveillance”.

Normative requirements:

Article 696 bis of the Code of Civil Procedure

Art. 8, Law 8 March 2017, n. 24

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