Generally speaking, tort law involves claims aimed at obtaining a private remedy, typically monetary damages. In both civil and common law, the person who causes loss or harm to a claimant is held to compensate him for such losses.
A tort may be related to contractual or to non-contractual obligations, and consists in the breach or violation of an economic or personal right protected by the legal system. The claimant is held to give evidence of (i) the causal link between the tort and the suffered damages; (ii) the existence of such suffered damages, which may also then be quantified by the judge on an equitable basis.
Damages are usually classed as patrimonial or non-patrimonial. Patrimonial damages are related to the violation of an economic right, while non-patrimonial damages are linked to the breach of a personal right. For example, a car accident may cause both patrimonial damages (the cost of repairing the car) and non-patrimonial damages (the compensation of a disability).
This said, the quantification of damages differs widely from country to country and, in particular, there is a conflict of views between Italy and UK in the field of damages due to medical malpractice.
In general, both in common and civil law, the compensation for medical malpractice may include (i) patrimonial damages, like medical and assistance expenses and treatment costs; (ii) non-patrimonial damages, like personal losses (e.g., moral damage suffered by the patient) or losses to persons close to the patient (e.g., moral damages to the patient’s relatives), that are related to the disability caused by medical malpractice.
Nonetheless, if we compare the Italian and UK legal systems, we observe that in Italy most of the compensation for medical malpractice goes towards moral and other non-patrimonial damages, whereas in the UK these only make up a small part of compensation. This means that in the UK nearly all such compensation is due to patrimonial damages and, in particular, to medical and assistance expenses.
For the sake of completeness, not only in the UK, but also in France, Germany and Spain (where civil law applies), nearly all of the compensation in medical malpractice cases is to cover medical and assistance expenses. This means that the difference between Italy and other European Countries in the type of compensation is not attributable to the difference between common and civil law.
And so why this difference between Italy and the UK in the compensation of medical and assistance costs? First of all, such expenses are intended to offset future damage, and are usually compensated by means of an annual income to the patient. Because they are quantified in line with the life expectancy of the patient, which is uncertain by definition and because the annual income is due to the patients for as long as they are alive.
Last but not least, the patient usually prefers to receive the entire compensation in a single payment and not as an annual income.
In contrast, the circumstance that in UK such expenses are almost always compensated, led to the adoption of the Rehabilitation Code.
The purpose of the code is to help the injured claimant make the best and quickest possible medical, social, vocational and psychological recovery. This means ensuring that his or her need for rehabilitation is assessed and addressed as a priority and that the process is pursued on a collaborative basis.
The above-mentioned reasons explain why the compensation of patrimonial damages for medical malpractice (in particular, the medical and assistance expenses) is very common in UK (and other European Countries), but very rare in Italy.
However, a turnaround recently occurred.
The Italian Courts (in particular the Court of Milan) are increasingly stating compensation by annual income to cover medical and assistance expenses, in accordance with Section 2057 of the Italian Civil Code. Nonetheless, the claimant is held to give strong evidence of the necessary costs of medical and assistance activities which will be required.
In conclusion, maybe this turnaround will lead Italy to the adoption of a Rehabilitation Code similar to the UK’s, but at the moment in Italy, non-patrimonial damages are the main type of compensation.