In a recent judgment delivered by the Maltese courts, a woman was awarded c. €120,000 in damages after it was determined that there were various shortcomings and negligence throughout her surgery. These types of cases inevitably raise medico-legal questions on the obligations and liability that can arise in medical cases.
When a person fails to discharge of an obligation which he has contracted, he shall be liable to damages. There are two types of obligations:
This article shall focus on the liability on medical professionals vis-à-vis obligazione di mezzi.
The degree of diligence which a medical practitioner ought to exercise is not something which is well-established in Maltese jurisprudence. However, Borg vs. Fiorni[1] established the fact that if a medical practitioner does not exercise prudence, diligence, and attention as mandated by the notion of bonus paterfamilias, he shall incur liability.
The prudence, diligence, and attention required from the medical practitioner shall not be one of highest quality, but to the degree one would expect from the ordinary medical practitioner. Moreover, a medical practitioner is expected to remain up to speed in medicinal advancements and use the accepted standard practice when exercising his profession.
Fatigue and being overwhelmed are also factors which may expose liability to the medical practitioner. This is because if fatigue and being overwhelmed are to the extent that the judgement of the medical practitioner is affected, then bonus paterfamilias is no longer being exercised. This is a notion which protects the patient from the employer forcing the medical practitioner to continue exercising his profession despite impairment in judgement[2].
Prior to the Gauci vs. Felice[3] judgement, liability incurred by medical practitioners was unclear whether it shall be governed by the principles of contract, tort, or quasi-tort. The Court of Appeal in this case examined both the English and Italian schools of thought. The Court opted to follow the principles of contract as it deemed them to be more logical and appropriate when relating to medical liability. Therefore, this is implying the notion that when a person engages a doctor, albeit being employed by the government or otherwise, he is tacitly entering into a contract.
The Court established that a medical practitioner, when entering into a contract with the patient, he is entering into an obligazione di fare whereby the medical practitioner is promising a service. Hence, it is not considered an obligazione di risultato since the medical practitioner is not promising a result but is promising to provide a service whilst exercising the bonus paterfamilias outlined above.
Maltese jurisprudence follows the Italian school of thought when it comes to the onus of proof in cases of damages versus medical practitioners. The rule is “incombe al cliente, il quale assuma di aver subito un danno, l’onere di provare la difettosa o inadequata prestazione professionale e il nesso casuale tra questa e il danno[4]”[5]. However, this rule needs further proving because proving negligence on the medical practitioner’s part is not satisfactory to prove the case. The plaintiff must also be able to prove that the injury which the medical practitioner assisted was worsened due to the negligence of the medical practitioner.
A judgement used by the Maltese Courts is Dunne vs. National Maternity Hospital[6], which established principles known as the Dunne principles which have to be proved in order to serve as the appropriate test for medical negligence. These are the following:
In such cases, if a patient successfully convinces the court of medical negligence, he is awarded damages of the actual harm or injury suffered and may also be awarded damages for loss of future earnings.
In conclusion, navigating medico-legal cases requires a thorough understanding of the obligations and standards expected of medical professionals. The distinction between obbligazione di mezzi and obbligazione di risultato is pivotal in establishing the scope of a medical practitioner’s duty. Maltese jurisprudence, drawing on Italian legal principles, underscores the importance of demonstrating a breach in the standard of care through the bonus paterfamilias standard. The need to prove not only negligence but also a direct causal link between the medical practitioner’s actions and the patient’s harm is critical in these cases.
Author: Neil Gauci
For information or assistance please contact us at info@gtg.com.mt
You may also wish to read:
Important agreement on key component for EU data strategy
[1] Josephine Borg et vs. Dr Anthony Fiorini, First Hall Civil Court, 18 July 1994.
[2] Medicine, Patients, and Law, Margaret Brazier, 1987 Edition.
[3] Rose Gauci et vs. Donald Felice et, Court of Appeal (Superior), 31 October 2008.
[4] English translation: It is the responsibility of the client, who claims to have suffered a damage, to prove the defective or inadequate professional service and the causal link between this and the damage.
[5] Corte di Cassazione, 21 December 1978
[6] Catherine Dunne vs. National Maternity Hospital, Supreme Court of Ireland, 20 March 1982.