The organizational liability of the clinic and the limits of recourse against the physician

1. The facts

   The issue of organizational liability reached a turning point with the 2019 San Martino judgments, consolidating an approach born from a complex case of malpractice and reaffirmed by the Supreme Court in 2023. According to industry media reports, the original case concerned a patient who suffered severe permanent damage following surgery.

   The healthcare facility, after being ordered in civil court to pay full compensation, instituted recourse proceedings against the surgeon to recover the entire sum paid. The case proceeded through three levels of jurisdiction up to the Court of Cassation.

   The Supreme Court ruled that, although the physical error was attributable to the physician, the clinic could not disregard its own management deficiencies, such as the absence of updated protocols and inadequate rest shifts, which contributed to the adverse event. Professional associations also emphasized the importance of this ruling in preventing physicians from becoming sole scapegoats for systemic inefficiencies.

2. 

   The rules in play

   The regulatory framework is based on Article 1218 of the Civil Code, which governs the facility's contractual liability towards the patient, and Article 1228 of the Civil Code, which provides that the debtor is liable for the intentional or negligent acts of its auxiliaries.

   The Gelli-Bianco Law (Law no. 24/2017) is fundamental: Article 7 distinguishes the facility's liability from the physician's (non-contractual) liability, while Article 9 limits the facility's recourse against the practitioner to cases of gross negligence only, imposing a quantitative cap on compensation equal to three times the gross annual salary.

3. What jurisprudence says

   High court jurisprudence has clarified that in internal relationships between the facility and the physician, a presumption of equal shares of liability applies. Consequently, in the absence of evidence to the contrary, the damage must be divided equally at 50% each.

   The clinic can obtain full recourse only if it proves that the physician's error was entirely exceptional and unpredictable, so as to sever the causal link with the corporate organization. Recent case law confirms that healthcare risk constitutes a business risk: whoever profits from an organized activity must bear the harmful consequences stemming, even if only partially, from structural deficiencies.

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8. What it teaches professionals

   Key takeaways for those handling such legal matters include:

   1. Document deficiencies: the professional must formalize in writing any lack or inadequacy of proper working tools.
   2. Check insurance policies: it is essential to ensure that insurance coverage extends to the employee's gross negligence.
   3. Emphasize co-responsibility: legal defense strategies should highlight how the organizational setup failed to prevent the technical error.

References: Articolo 1218 Codice CivileArticolo 1228 Codice CivileArticolo 1298 Codice CivileLegge 24/2017 (Legge Gelli-Bianco) Articoli 7 e 9

Editorial oversight: Avv. Federico Papa·ICAMUpdated 6 May 2026Content drafted with AI support and subject to editorial source checks. Despite these controls, inaccuracies may remain: reports and rectification requests are welcome. Report a correction