MANDATORY MEDIATION IN CASES OF MEDICAL NEGLIGENCE
(ITALIAN LEGISLATIVE DECREE 28/2010)
With the entry into force of the legislative decree no. 28/2010 in Italy, whoever wanting to promote a civil lawsuit, one which has as its object medical negligence, will be obliged to first try a mediation, which will be mandatory, with the other party, by convening the assistance of a professional, the conciliator.
According to some research, it turns out that the doctors themselves are still ill-informed of what this new law provides for and in fact, mediation in this sector represents a real bet.
According to the intention of the lawmakers, this is on one hand, as we have already mentioned, a useful tool to “decongest” the justice system,” of the large amount of lawsuits related to medical liability, and on the other hand is used to “rebuild” the relationship between doctor and patient, because it provides an opportunity to quickly fix the issues by means of a settlement.
Essentially, if Jon for example, sues Dr. Mengano for medical malpractice (in this we are referring to the hypothesis in which the patient suffered an injury to his or her health due to negligence, recklessness or the incompetence of the doctor who treated him and/or performed surgery on him), but before suing both parties will have to go to a conciliator to initiate a mandatory mediation.
The conciliator, in a maximum period of four months, will to try to reach an agreement between the parties to avoid resorting to filing a lawsuit.
If mandatory mediation fails, then Jon can sue Dr. Mengano. If on the contrary, the mediation is successful, the conciliation reached among the parties shall be approved by a judge and will become enforceable.
It is important to point out that not only disputes that relate to medical negligence will have to be handled by the prior recourse of mandatory conciliation. Since March 21, 2011 in fact it is mandatory to follow this procedure also for disputes related to real rights, leases, banking and insurance, inheritance relations and for compensation due to damages caused by libel. Since March 20, 2012 compulsory mediation-conciliation has also been extensive, also in the theme of condominium and car accident legislation.
MANDATORY MEDIATION IN THE BLAME MEDICAL – the conciliation procedures
The conciliation procedures can be handled only by agencies authorized by the Ministry of Justice. Each agency, within the parameters established by law, uses its own rules of conciliation, which regulate the different stages of the procedure.
It is advisable that before choosing the agency to which go for mediation, find out that the same have a structure able to ensure adequate assistance for the specific problem you are facing.
Some agencies, in fact, are specializing in the different fields in which is compulsory conciliation, through the training of highly skilled professionals in the various subjects.
You cannot take the risk of a medical malpractice case being handled by an excellent conciliator, but also one who in the course of his professional career has only handled cases related to condominiums (risks you may face if you are headed to generalist agencies).
Therefore, considering as a thesis to undergo a mandatory mediation-conciliation is a requirement of processability for the filing of a case of this type in the docket, it is opportune to use the best form of this instrument, taking those which are the positive aspects, which, however, are quite discouraging when we prepare ourselves to face up an ordinary cause:
- 1) Very short times, in fact the mediation-conciliation procedure has to be concluded in a maximum of 4 months.
- 2) Thrift, also from a time point of view, because according to value (there is a distribution by steps) a mediation-conciliation costs less than facing a cause which can be always be proceeded with later anyway.
I hope I have been clear enough: I have tried to simplify my exposure to the utmost (by removing many technicalities) and as always I am at your disposal for any question and deepening the understanding of the topic.