Medical insurance indemnity and prescription

With Decision no. 5475 of 22 February 2023, the Supreme Court of Cassazione has dealt again with the issue of joined liability as well as the power of the Judge to proceed with gradation of the respective shares of liability. Furthermore, the Supreme Court also addressed the issue of the dies a quo from which the limitation period starts to run for the Insured in order to exercise the right to ask for indemnity to his own Insurance Company.

In the above mentioned case, a Clinic and a Doctor had been sued by a patient who asked compensation for damages suffered as a result of medical malpractice. As outcome of the first instance’s proceedings, the Court assessed both the clinic and the doctor liability and condemned them to compensation. In addition, the Court dismissed the doctor’s claim to be held harmless due to time-barred of the right pursuant to Article 2952 of the Civil Code.

The case has been brought before the Supreme Court whom, in line with its settled case law, stated that the injured party has the right to claim the entire indemnity payment also against one of the jointly liable persons.

Furthermore, The Supreme Court has specified that the Judge is required to graduate the shares of the liability between jointly liable persons only in case such determination is requested at least by one of the jointly liable parties. In the case at hand, such request had not been brought by any of parties involved.

Having regard to the limitation period of the right to be held harmless, the Supreme Court has applied the presumption of the document’s knowledge as per Article 1335 of the Civil Code. The Court stated that the request for indemnity sent by the injured party to the Clinic shall be considered to have been known by the doctor given his habitual work at the Clinic. The Court therefore qualified this act as the first request for indemnity from which the limitation period starts to run, and consequently confirmed the time-barred of the right of the Insured.