Statistically, 1 accident every 10 days occurs in each of the public health facilities in our country and many of these events cause financial consequences (with an average compensation that now exceeds 80,000 euros), often devastating for the pockets of those called to answer for it. For this reason, the experts of Consulcesi & Partners, the network dedicated to the legal and training support of the health professions, provided a series of practical advice ranging from how to correctly draft informed consent, lingering on the best legal strategy to take in case of claims for damages, to ending with the best legal coverage to be included in the insurance.
In an excursus that starts from the letter of formal notice of a patient and reaches the judicial phase passing through the mediation procedure or the preventive technical assessment for conciliatory purposes, there are many aspects to be taken into consideration for a correct approach to a case of malpractice. Consulcesi & Partners experts offered practical solutions through the narration of various case histories and suggestions.
“Faced with a health dispute that you have never ceased to increase – underlines Simona Gori, CEO of Consulcesi & Partners – we observe the proliferation of proposals from companies that, for various reasons, openly take sides in favor of the category of patients, sometimes with messages far beyond the limits of ethics and respect for the health profession. In the face of these realities – says Gori – the initiatives that aim to provide an equally high level of protection for doctors and the entire health sector are rare. more often than not worried about the criminal consequences, she neglects the much more serious financial risks underlying a professional civil dispute. C&P – explains the CEO – has therefore decided to take the field to provide health professionals with an equally qualified and multidisciplinary service, which can guarantee a truly effective and synergistic defensive performance to protect the multiple personal and patrimonial interests, the regulations, disciplinary and insurance policies generally involved in a case of health responsibility “.
‘Contact a healthcare lawyer immediately’
“The first piece of advice – advocate Francesco Cecconi suggests – is to immediately contact a lawyer specialized in the health sector to respond to the complaints and to dismantle the reconstruction of the facts underlying the claim for compensation. It is decisive to rely on a lawyer from the very beginning. the moment in which the letter of formal notice is received which represents the first act with which a doctor becomes aware of the request for compensation against him, a letter which – underlines Cecconi – is usually drawn up by the patient’s lawyer, supported by a medical report- forensic packaged by a coroner and a subject matter specialist “. Cecconi also suggests “to include legal coverage in the compulsory insurance policy to cover expenses in the event of involvement in judicial procedures”.
As emerged from the debate, in fact, the insurance coverage of personal civil liability is decisive above all in the event of a conviction of the healthcare professional jointly and severally with the structure which, if without insurance, could induce the patient’s lawyer to prefer the path of foreclosure of assets. of the doctor. “However – explains Cecconi – in order for the insurance company to effectively cover the doctor for this risk, it is advisable to call him in the trial when the doctor constitutes himself in the ordinary or precautionary judicial phase”.
The importance of informed consent
It is also fundamental to draw up well the informed consent to be submitted and signed by the patient before the surgical or therapeutic intervention since, remembers Mariavittoria Michelacci, “the constitutionally protected right of the patient’s self-determination is set up to protect. of informed consent since – underlines the expert – compensation for damage for the violation of this constitutional right is also due regardless of the existence of biological damage “.
At the end of the judicial procedure that can acquit or convict the health professional, the latter can then choose, again after a discussion with his lawyers, “to proceed with the appeal of the sentence, which however does not suspend the executive effectiveness of the sentence; therefore – underlines Michelacci – if a doctor or a health professional is sentenced to financial compensation, even if he decides to proceed with the appeal, he will still have to honor the payment provided for by the sentence. public structure, this – warns the expert – could then activate the recourse action against him, with the risk of having to reimburse it within the maximum limits set by the Gelli Law “.