The report of the preliminary technical assessment can be used against the insurance Company that did not participate in the proceedings and was then called upon to indemnify by the Local Health Authority (“Asl”) and the medical doctor in a professional liability dispute.
The document can be filed in the judgement on the merits and constitutes atypical evidence freely admissible by the judge. The party who did not participate in the ante causam assessment may therefore not challenge the effects of the decision, since it has the procedural tools to reject its validity and conclusions.
On March 24 by the Third Civil Section of the Italian Supreme Court issued a judgement which ruled that the Court of Appeal was mistaken in rejecting the application for indemnity on the ground that the decision was also based on the preliminary technical assessment, in which the insurance company did not take part. In the second instance proceedings, the company changed its defence strategy and did not contest the liability of the Asl and the doctor, but it only contested the unenforceability of the preliminary technical assessment against it.
Since the technical report is deemed part of the evidence filed in the proceedings, the judge may use it to rule also against parties that did not participate in the preliminary technical assessment. The insurance company should have requested a Court appointed technical opinion or filed further evidence.
In light of the above, the final decision is made by the Court of Appeal, to which the proceedings were referred.