L’assicurazione della responsabilità medica: tra claims made e deeming clause

Abstract

The research starts from the general consideration that whoever causes unjust damage to others is obliged to compensate them. The disvalue attributed to the circumstance that breaks the social and legal equilibrium is answered, therefore, in the value judgement attributed to the restorative act or to the obligation to compensate the damage. The close link between the insurance system and civil liability is based on the fact that civil liability is no longer a sanction but essentially a tool for repairing the damage. After analysing the elements that characterise contractual and extra-contractual liability, the doctrine's approaches are taken into account that tend to reduce the differences between the two institutions in the search for the most suitable instruments to protect the various interests that have been damaged. Through recourse to the "principle of risk", the "principle of solidarity" and, finally, the "principle of prevention", the more rigid reconstructions of fault as a criterion of imputability are abandoned and the new boundaries of liability are constructed. Today, the criteria of imputation and their degree of relevance are regulated by the legislator more and more in relation to the function of liability. Overcoming the principle of fault as a criterion on which liability is based opens up the possibility of liability insurance. With insurance the damage is not eliminated but transferred from the person who suffered it to the person who compensates it. This shifted the focus to the economic level since, in the distribution of costs within modern society, it seemed fairer to place some

economic burdens on the one who is able to calculate the consequences of his activities and the cost of any damage and, therefore, to "prepare himself to bear the risk". Civil liability was then distinguished from other instruments of protection, such as those for the protection of property (Property Rules), observing that the legal system does not always link its typical rules to the recognition of a certain type of liability, as it can also establish other remedies: the protection granted ends up responding to the function that the legal system attributes to it, rather than to the type of liability configured. The book then examines the various functions attributed to civil liability, from the sanctioning/punishment function (recently reconsidered, or rather, not excluded by the unified sections of the Supreme Court in 2017) to the compensatory/reparatory/reintegrative function of the injured party's assets; some considerations then concerned the relationship between civil liability, termination and nullity of the contract. The first chapter ends with a brief outline of comparative law, distinguishing between the countries that accept the model based on the typicality of the tort, according to the Roman reconstruction, and those that are inspired by a model based on the atypical nature of the tort, according to what has been developed by the doctrine of natural law. The second chapter analyses in more detail the theme of civil liability, from its traditional distinction into contractual and extra-contractual liability, to the emergence of new figures such as liability from social contact. The latter was devised in order to replace the contractual scheme in certain hypotheses in which one of the parties finds it necessary to rely on the professionalism of another person: this reliance would give rise to an obligatory relationship. The non-performance of the obligations arising therefrom, even though not arising under a contract, would be attributable to those facts or acts referred to in Art. 1173 of the Civil Code. The distinction between obligations to perform and obligations to protect, elaborated by German doctrine, has founded this type of liability; in Italy the obligations to protect were initially studied in the context of pre-contractual liability to then find a broader application. In the context of pre-contractual liability, obligations of protection were based on a hypothesis of extra-contractual liability; after judgement no. 589/1999 they were framed in the area of contractual liability. The obligations of protection have emerged essentially in connection with the general clauses of the contract, namely diligence, fairness and good faith which find their normative basis in Articles 1175 and 1375 of the Civil Code. In this respect, these are obligations different from those accessory to performance that qualify exact performance: the latter are instrumental to performance and their violation undoubtedly entails contractual liability. It is debated whether the obligations of protection have their own independent relevance, according to the approach more recently accepted by case law, or whether they are to be included in the performance implied in the contract, in which case they would be relevant only in the event of a breach of the principal obligation to perform. Since obligations may arise not only from the contract or from wrongful acts but also from other types of relations between persons, the obligatory relationship is characterised as a complex relationship characterised by the performance under Art. 1174 of the Civil Code and the obligation of protection inferable from Art. 1175 of the Civil Code or according to others from the obligation of good faith under Art. 1375 of the Civil Code. The unified section of the Supreme Court of Cassation in judgment no. 577 of 2008, in order to avoid an excessive expansion of such protection obligations, stated that liability should only arise where a "qualified social contact" is ascertained. The chapter closes with an analysis of good faith, which is relevant at all stages of the contract: it must accompany both the stage of formation (Art. 1337 Civil Code), its interpretation (Art. 1366 Civil Code) and, finally, its execution (Art. 1375 Civil Code) and has a subjective and objective scope. The latter relates to that "open" series of obligations that give the parties' conduct the connotations of loyalty, honesty and fairness.

We owe to Jhering the transfer of pre-contractual liability from the area of non-contractual liability to contractual liability, which in our system would find a normative foothold in Art. 1337 of the Civil Code which refers to the "parties". In the specific hypothesis of pre-contractual negotiations, the obligation to behave in good faith is imposed directly by law, but the theory of social contact will then extend this obligation when there is a qualified contact between two parties. Recently, the theory of social contact has entered into crisis: in particular in the health sector, the legislator, after initial uncertainties, affirmed in 2017 that the liability of the doctor employed by the health facility should be framed within the scope of non-contractual liability. The new legislation would seem to mean that the doctrinal and jurisprudential reconstruction referred to above has been overturned. After a quick examination of the insurance institution, with some hints of comparative law and with particular attention to the analysis of alea and the distinction between putative and subjective risk, the work focused on liability insurance. The investigation focuses specifically on the notion of claim and, in particular, on the more recent approach that identifies it as the claim for compensation from which, alone, the danger to the insured's financial loss derives. The claims made clauses in their various configurations were essentially examined in relation to the time limitation of insurance policies. From the Anglo-Saxon experience, these clauses have been transferred to our system to circumscribe the economic exposure of insurance companies, in particular for long latent damages, by delimiting the object of the insurance contract. Although these clauses do not entail hypotheses of exoneration of liability, they determine a substantial reduction in the insured's guarantees, especially in cases where the "impure" model is adopted, which limits the insurance guarantee to claims made at the time of the validity of the contract and for events which also occurred during the validity of the contract. These clauses have been endorsed by the Italian Supreme Court in a unified section with two fundamental decisions, one in 2016 and the other in 2018; today, however, they are again challenged by the third section of the Supreme Court. The work closes with an examination of the evolution of the discipline of healthcare liability and of the positions of doctrine and jurisprudence on the same, which have moved from an initial approach in terms of extra-contractual liability to that of contractual liability, to be brought today, only that of the doctor, by the Gelli-White law in the area of extra-contractual liability. The liability of healthcare facilities continues to be classified as contractual liability: however, in 2019, the Supreme Court of Cassation, on the assumption that in the case of obligations of doing something, contractual liability has different connotations from those of obligations of giving or doing, has provided for rules taken from the discipline of non-contractual liability on the subject of causal connection and proof. In terms of insurance, the law imposes a form of compulsory insurance with claims made clauses with a ten-year retroactivity and a ten-year extension in the event of cessation of activity. The law also provides that the policies must be constructed with the deeming clauses formula, which makes the guarantee conditional not only on the request for compensation by the injured party but also on the presentation of the same by the insured to the insurance company. The question has therefore arisen as to whether such clauses can legitimately fall within the scope of the insurance contract and whether the forfeiture foreseen in them in the event of late notification is in contrast with article 1913 of the civil code, which foresees a three-day notice period, with article 1915 of the civil code, which establishes different consequences depending on whether the failure to give notice depends on fault or fraud, and with article 1932 of the civil code, which attributes the mandatory nature of the last-mentioned provisions. The most recent decisions of the IIIrd section of the Supreme Court on deeming clauses now seem to be at odds with what the Unified Sections stated in 2018. [edited by Author]