Medical Malpractice Insurance: Draft Decree Setting Up The New Minimum Requirements For Insurance Policies Covering The Risks Connected To Health Care Activities

Last August the draft decree (hereinafter the "Draft Decree") that should regulate coverage minimum requirements and general conditions of insurance policies underwritten by public or private healthcare and social-health facilities, and by healthcare professionals, was circulated, in implementation of article 10, paragraph 6 of Law n. 24 of 3 March of 2017 (better known as "Gelli Law"). It is still a provisional text that will have to be issued by the Minister of Economic Development in conjunction with the Minister of Health and the Minister of Economy and Finance, with the prior agreement at the permanent Conference for the relations between the State, the Regions and the autonomous Provinces, after consultation with Ivass, Ania and the major institutions representing the healthcare sector and the respective trade union organizations.

The Draft Decree aims at regulating: (a) the minimum coverage requirements for insurance policies covering public and private healthcare and social-health facilities and health professionals' liabilities, provided for in Article 10, paragraphs 1, 2 and 3 of Gelli Law; (b) the minimum requirements and the general operational conditions of the measures for the direct, full or partial assumption of the risk by the healthcare facility; (c) the rules regarding risk transfer in the event of a contractual takeover of an insurance undertaking; (d) the provisions requiring healthcare facilities to establish in the financial statement a specific risk fund and a claims reserve fund.

Although, as mentioned, this is a provisional draft, some provisions deserve particular attention.

Article 1 of the Draft Decree contains a list of definitions that- most likely - will affect the wording of the insurance policies that will be issued in implementation of Gelli Law and the above mentioned decree. In particular, the definition of claim expressly excludes hypotheses such as the request of the medical record, the execution of autopsy / judicial autopsy / autopsy referred to in Presidential Decree no. 285 of 1990, the lawsuit and the notice of investigation.

First paragraph of Article 3 provides that insurance policies must guarantee coverage to public and private healthcare and social health facilities for cases of contractual liability pursuant to Articles 1218 and 1228 of the Italian Civil Code deriving from material and non-material damages caused, willfully or with gross negligence, to third parties and employees by...