CYIL vol. 10 (2019)

CYIL 10 ȍ2019Ȏ IN THE DOCTORǧPATIENT RELATIONSHIP… liability; the special relationship between the physician – who is neither a “passer-by” nor a quisque de populo – and the patient might ground an obligation comparable to the legal relation arising from a contract 42 . Basically, two scenarios can be outlined. The patient admitted to a hospital or a clinic: i ) enters into a contract with the medical institution, and is treated by an internal physician who is affiliated with the medical institution; ii ) concludes a contract with a physician practicing their professional activity within a medical institution 43 . The contract concluded with the medical institution has been defined by Italian jurisprudence as the “hospitalization contract” or “health assistance contract” ( contratto di spedalità or contratto di assistenza sanitaria ), which is an innominate and “complex” contract, as, beyond stricto sensu medical treatment, services related to accommodation are provided, drugs, medicines and equipment are administered, etc. In other words, besides the main obligation (medical treatment), there are additional obligations which will have to be performed by the medical structure within the hospital/patient relationship 44 . Until the Nineties, in cases where medical malpractice imputable to a physician employed in a medical institution had caused personal injury to the patient, the latter could have filed both a contractual claim against the medical institution, and a tortious claim against the physician. Starting from 1999, Italian jurisprudence placed medical liability in the contractual field, regardless of whether a formal contract had been concluded or not, and of whether medical treatment had been received in public or private institutions 45 . The Supreme Court affirmed the existence of a “special relationship” between the physician and the patient, which placed the liability arising from medical malpractice within the contractual field. In the quite common case of a patient medicated by a physician affiliated with a medical institution, there is no formal contractual relationship between patient and physician. Nevertheless, according to jurisprudence, the so-called “social contact” ( contatto sociale ) between the patient and the physician was deemed sufficient to create a special relationship giving rise to “duties to protect” ( obblighi di protezione , conceptually equivalent to the German Schutzpflichten ) 46 . 42 Cf. SCHUCK, Peter H. Rethinking Informed Consent. The Yale Law Journal . (1994, no. 103), p. 903: «informed consent claims arise at the private law intersection of torts and contracts, the laws which govern most workday activities and choices». 43 For further information see SCARSO, Alessandro P. and FOGLIA, Massimo. Medical liability in Italy. In KOCH, Bernhard (ed.). Medical Liability in Europe. A Comparison of Selected Jurisdictions . A. De Gruyter, Berlin/Boston 2011, pp. 329-358. 44 For instance, courts have affirmed the contractual liability of hospitals and clinics for their “inefficiency”, should the structure’s deficiencies cause damage to patients (for instance, the failure of technical instruments): see Cass., 16 May 2000, no. 6318, with a commentary by GORGONI, Marilena. L’incidenza delle disfunzioni della struttura ospedaliera sulla responsabilità ‘sanitaria’. Responsabilità civile e previdenza. (2000), p. 940. See also IUDICA, Giovanni. Danno alla persona da inefficienza della struttura sanitaria. Responsabilità civile e previdenza. (2001), p. 3. 45 Starting from Cass. 22 January 1999, no. 589, with a commentary by DI MAJO, Adolfo. L’obbligazione senza prestazione approda in Cassazione. Corriere giuridico . (1999), p. 446. See also Cass, Joint Chambers, 11 January 2008, no. 577, with a commentary by GORGONI, Marilena. Dalla matrice contrattuale della responsabilità nosocomiale e professionale al superamento della distinzione tra obbligazione di mezzo/di risultato. Responsabilità civile e previdenza. (2008), p. 856. 46 See BENATTI, Francesco. La responsabilità precontrattuale . Giuffrè, Milano 1963; CANARIS, Carl-Wilhelm. THE ROLE OF CONSENSUS

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