Malpractice cases or public bodies‘ liability cases, both originated by coronavirus, are bound to be discussed in terms of liability for non-pecuniary losses and of medical liability. This contribution outlines the Italian scenario and some possible future development of the relevant law.

INTRODUCTION

The COVID-19 emergency currently has much more to do with contract law than with both tort in health-related issues, and medical liability. This might almost seem a paradox during a pandemic. However, there is a quite obvious reason for it. As a result of the disease and of the disruption to trade it has caused, many governments (the Italian government for sure) have been forced to adopt exceptional measures that mainly address contractual relationships.

On the other hand, malpractice cases or public body liability cases, arising out of the coronavirus, are bound to be matters for discussion in the future. Nobody yet knows how close we are to that future. There still is time in abundance for the filing of lawsuits. Nevertheless, since much has happened and continues to happen as a result of the pandemic, medical liability will become a matter of paramount relevance, whether in tort or contractually, so now is a good time to address the topic, even if how exactly the situation will develop cannot yet be known.

This contribution will therefore examine certain principles in Italian law governing damages for non-pecuniary losses in actionable personal injury cases. First, I would like to look at the rules governing when personal injury is actionable and how the amount of any such damages are calculated. Secondly, I will focus attention on the rules on medical liability. Finally, I will say something about the current situation and future prospects.

NON-PECUNIARY LOSSES

On the first count, the situation in Italy was clarified by the so-called S. Martin judgments of 2008. These decisions addressed the problem of non-pecuniary losses both in tort and in contract.

The problem of non-pecuniary losses in tort requires the interpretation of Article 2059 Italian Civil Code (c.c.). This rule of law states that compensation for non-pecuniary losses is awarded only in the specific cases provided for in law. Following much uncertainty, the Supreme Court (Corte di Cassazione) decided there are three groups of cases that could be said to be provided for in law according to Article 2059 c.c.