The case, explained
The "organizational" liability of the clinic and the limits of recourse against the physician
6 min read · Updated May 2026 · Editorial oversight: Avv. Federico Papa
The jurisprudential consolidation initiated by the 2019 San Martino judgments and reaffirmed in 2023 reignites the debate over the allocation of compensation between clinics and physicians. Case law has progressively narrowed the room for maneuver for facilities attempting to offload the entire economic burden of damages onto the individual practitioner, emphasizing the concept of healthcare business risk. The organizational liability of the facility can never be completely eliminated, even in the face of an execution error by the surgeon, establishing a principle of co-responsibility that protects the professional's assets. Through a didactic twin case, we explore the dynamics of the right of recourse and the insurmountable limits set by law to protect the medical profession.
In brief
This article examines the liability of healthcare facilities and the limits of the right of recourse against physicians. Building upon the consolidated case law of the Supreme Court (2019 and 2023), it analyzes how organizational fault prevents the facility from seeking full recovery from the practitioner. By examining Articles 1218 and 1228 of the Italian Civil Code and the Gelli-Bianco Law (Law 24/2017), a parallel engineering case is presented to illustrate damage allocation and defense strategies for professionals involved in malpractice litigation.
The facts
The topic of organizational liability reached a turning point with the 2019 San Martino judgments, consolidating a legal line born from a complex case of malpractice and reaffirmed by the Supreme Court of Cassation in 2023. 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, took recourse against the surgeon to recover the entire sum paid. The case went through three levels of judgment up to the Supreme Court.
The Supreme Court ruled that, although the execution error was attributable to the doctor, the clinic could not ignore its own management deficiencies, such as the lack of updated protocols and inadequate rest shifts, which contributed to the adverse event. This decision prevents doctors from becoming the sole scapegoats for systemic inefficiencies.
The rules in play
The regulatory framework is based on Art. 1218 of the Italian Civil Code, which governs the facility's contractual liability towards the patient, and Art. 1228 of the Civil Code, which states that the debtor is liable for the intentional or negligent acts of its auxiliaries.
The Gelli-Bianco Law (Law 24/2017) plays a fundamental role: Art. 7 distinguishes the facility's contractual liability from the doctor's extra-contractual liability, while Art. 9 limits the facility's recourse against the practitioner strictly to cases of gross negligence or willful misconduct, imposing a quantitative cap on compensation equal to three times the gross annual salary.
What jurisprudence says
Case law from the Supreme Court has clarified that in the internal relationship between the facility and the doctor, a presumption of equal share of liability applies. Therefore, in the absence of evidence to the contrary, the damage is split 50/50.
The clinic can only obtain full recourse if it proves that the doctor's error was entirely exceptional and unpredictable, so as to sever the causal link with the corporate organization. Recent rulings confirm that healthcare risk is a business risk: those who profit from the organized activity must bear the harmful consequences arising even partially from structural deficiencies.
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What it teaches professionals
Lessons for practitioners facing these cases include:
- Document deficiencies: The professional must report the lack of proper tools or protocol breaches in writing.
- Check insurance policies: It is essential to ensure that the insurance policy covers the employee's gross negligence.
- Focus on organizational co-responsibility: In legal defenses, counsel should highlight how the organization 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
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Frequently asked questions
What are the financial consequences provided for the gross negligence of a doctor?
In civil matters, the recourse action brought by the facility against the doctor for gross negligence is subject to the quantitative limit established by Art. 9 of Law 24/2017, equal to three times the gross annual salary. In criminal matters, potential liability for personal injury or manslaughter is assessed taking into account adherence to guidelines and clinical best practices.
How long does the clinic have to exercise the right of recourse?
Under Art. 9, paragraph 2, of Law 24/2017, the recourse or indemnity action must be exercised by the healthcare facility, under penalty of forfeiture, within one year from the date the compensation was actually paid to the injured patient.
What legal defenses can be raised if the clinic claims 100% recourse?
The practitioner can invoke the presumption of equal share of liability between the facility and the healthcare provider established by the Supreme Court. Proving that organizational, structural, or management deficiencies contributed to the adverse event limits the recourse action, preventing the entire financial burden from falling on the individual.
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