The Fourth Criminal Chamber of the Supreme Court reaffirmed the sentence no 36502 of 23/09/2008, the principle that the damage caused by the doctor as "the Convention", in the exercise of the profession of contractual arrangements with the National Health Service should be compensated, exclusively, by health and not jointly and severally, on 'public body with which he has established maximum ratio convenzione.La Altmark states that between the practitioner and ASL "exists or not a relationship of identification with body, nor of" auxiliary " but, rather, the doctor should be regarded as a professional, fully autonomous, freely chosen by the patient. The ASL, in practice, does not exercise any power over that doctor's supervision, control or direction, so that the practitioner can not be considered a charge that operates independently but is bound by the 'obligation to comply with the orders and Directives preponente.Tale of the subject decision is made in full accordance with the established legal nature of the relationship of an agreement, according to a set already established both in doctrine and in jurisprudence, does not fall within 'scope of public service to the absence of the element of subordination and characterized by the creation of an independent report of performance of professional work in nature privatistica.I lower courts, Court of First Instance and Court of Appeals, however, had founded the Local Health sentencing that it was possible to set up a relationship of responsibility Civil as the relationship between the patient institution, private or public that has contractual cd. "Hospital atypical", in which the institution assumes a principal obligation concerning patient care, which is the primary purpose of debt negotiation, and is also bound by an obligation to preserve the accessory from the patient's aggression structure, or by incompetence or neglect of people with Which the Convention, with the result that should be regarded as contractual liability on the part of all 'AS L. as derived from the relationship which, although alien to that of the civil service, alloy, of the contract, the ASL with the practitioner. However, the assumed continued, especially from Court of Appeals, he can not overcome an obstacle: the reason given by the appellate court would be lawful and effective only if we're before a contract of employment or otherwise, to a relationship that in practice would give a power of supervision and control the CD. principal, provided that it was precisely excluded by the Court of Cassazione.Si is also argued, however, that the company's responsibility is based, regardless of whether an employment relationship, on the principle of 'risk-taking by those who organize an activity as it is sufficient in order to causation, a relation of "occasional basis" or of "mere occasional." But the direct contractual liability presupposes a "social contact", the assumption that it is only between the patient and the practitioner, not with the 'Asl.La Supreme Court, therefore, condemned any attempt to extend the contractual liability of The or through the use of the theory of "social contact" or that the Hospital atypical, and finally decided that "can not be said that the practitioner is an officer of the health, or that it somehow takes the risk (inherent to 'use of third parties) of free activities health.
NAPOLINORD 3:11:08
0 comments:
Post a Comment