Medical Malpractice and Healthcare Liability

Pozzi-Castronovo Law Firm provides contentious and non-contentious legal advice and representation in matters concerning medical malpractice and healthcare liability. Depending on the nature of the instruction, the Firm acts for patients and family members seeking compensation for harm arising from healthcare treatment, as well as for doctors, healthcare professionals and public or private healthcare facilities facing compensation claims or involved in civil, criminal or disciplinary proceedings.

Healthcare liability is an area in which legal analysis cannot be separated from a medical-legal and specialist assessment of the facts. An adverse clinical outcome, the deterioration of a patient’s condition or the occurrence of a complication does not, in itself, establish professional negligence. It is necessary to determine the nature and scope of the treatment provided, the appropriateness of the diagnostic and therapeutic pathway, the standard of conduct reasonably expected of the healthcare professional, the relevance of the patient’s pre-existing condition and the existence of a causal connection between the alleged act or omission and the resulting harm.

For this reason, the Firm begins by obtaining and reviewing all relevant medical records, including clinical files, diagnostic reports, surgical records, anaesthetic charts, medication records, discharge summaries, prescriptions, radiological images and informed consent forms. Where necessary, the legal assessment is coordinated with forensic physicians and medical specialists in the relevant clinical discipline. This preliminary investigation is intended to reconstruct the healthcare pathway chronologically, identify the relevant conduct, verify compliance with the applicable clinical guidelines and good medical practices, and determine whether the harmful outcome could have been avoided or mitigated through a different course of professional conduct.

The Firm provides assistance in cases involving diagnostic errors, failure or delay in diagnosis, inappropriate treatment, surgical errors, improperly managed complications, anaesthetic injuries, incorrect prescription or administration of medication, healthcare-associated infections, inadequate postoperative monitoring, delays in treatment or emergency care, deficient coordination between members of a clinical team, organisational failures within the healthcare facility, defective medical devices or equipment, dental injuries, obstetric and neonatal harm, and disputes concerning cosmetic or medically unnecessary procedures. The Firm also advises on breaches of information duties and the validity of consent to medical treatment. A patient’s consent must be preceded by clear and adequate information concerning the nature and purpose of the proposed treatment, its foreseeable risks and possible complications, available therapeutic alternatives and the consequences of refusing treatment.

The Firm therefore assesses both any injury to health causally attributable to the treatment and any independent infringement of the patient’s right to self-determination arising from the absence or inadequacy of the information provided, distinguishing the respective legal requirements and heads of recoverable damage. Civil liability is examined in accordance with Italian Law No. 24 of 8 March 2017, which distinguishes between the liability of a healthcare or social care facility and that of the individual healthcare professional. A public or private facility is subject to the rules of contractual liability for negligent or intentional acts committed by the professionals whose services it uses in performing its obligations.

By contrast, an individual healthcare professional is generally liable in tort under Article 2043 of the Italian Civil Code, unless that professional has directly undertaken a contractual obligation towards the patient. This distinction affects the legal basis of the claim, the allocation of the burden of proof and the applicable limitation period and therefore requires the correct identification of the liable parties, the conduct complained of and the legal grounds on which the claim is based. Where the healthcare event has caused temporary or permanent impairment, the Firm assesses the different recoverable heads of damage, including biological injury, moral and non-pecuniary harm, adverse effects on the claimant’s personal and relational life, financial losses, medical and care expenses, loss or reduction of earning capacity and, where the legal requirements are met, loss of a material chance of recovery or survival. In fatal cases, assistance also extends to claims brought by heirs and close family members, distinguishing rights transmitted by the deceased iure hereditatis from claims arising iure proprio as a result of the loss of the family relationship and the personal consequences suffered by the relatives. Before commencing judicial proceedings, the Firm prepares and submits the compensation claim, manages correspondence with the healthcare facility, the professional concerned and their respective insurers, examines any objections raised and assesses settlement proposals. Judicial proceedings must be preceded by satisfaction of the mandatory pre-action requirement established by Article 8 of Law No. 24/2017, either by applying for a preliminary court-appointed expert assessment for the purpose of facilitating settlement under Article 696-bis of the Italian Code of Civil Procedure or by commencing mediation proceedings, depending on the procedure considered most appropriate for the particular case.

The preliminary expert assessment is especially important because it enables questions of negligence, causation, damage and quantum to be submitted at an early stage to a court-appointed expert and may facilitate an agreed resolution of the dispute. The Firm also represents doctors, healthcare professionals, members of clinical teams and officers of healthcare facilities in criminal proceedings for negligent personal injury or manslaughter arising from healthcare activities.

The defence requires an individual assessment of the professional’s role, the actual allocation of responsibilities, compliance with clinical guidelines, reasonable reliance on the conduct of other members of the team, the organisational conditions in which the treatment was provided and the possible application of Article 590-sexies of the Italian Criminal Code. Legal representation may also extend to disciplinary proceedings before professional regulatory bodies, recourse or indemnity claims, administrative liability proceedings and disputes with insurers, including questions concerning policy coverage, exclusions, liability limits and notification obligations. When advising healthcare and social care facilities, the Firm also considers the organisational aspects of liability by reviewing internal protocols, clinical risk-management procedures, the completeness of medical records, the traceability of clinical decisions, staff and shift arrangements, the adequacy of available resources and the proper management of informed consent procedures. Every instruction is preceded by a rigorous assessment of the available records and of the legal and medical sustainability of the position, so that any compensation claim or defence strategy is based on verifiable technical evidence and a coherent analysis of causation.