Discover what medical malpractice is and how to report a medical error in Italy. A complete guide to compensation for both Italian and foreign citizens.
Every year in Italy, too many cases of medical malpractice undermine the health and dignity of patients.
Hospitals should be places of care and reassurance for those who are unwell and for their loved ones.
Yet, despite controls and clear protocols, malpractice continues to cause suffering and death.
What is meant by medical malpractice?
Medical malpractice refers to harm suffered by a patient as a result of medical errors, omissions, negligence, or shortcomings in the healthcare system.
These may include misdiagnoses, inappropriate treatments, or poor organisation.
Although the italian term "malasanità" (literally "bad healthcare") is often used in everyday language to describe inefficiencies or dysfunctions, in legal terms the more precise concept is medical liability.
This applies when negligent conduct by healthcare professionals or institutions can be proven to have caused actual harm to a patient.
The distinction is important: only in cases where malpractice is established can compensation be sought for the damage suffered.
For instance, if a delayed diagnosis does not actually harm the patient, even though incompetence may have occurred, there is no basis for claiming damages.
What constitutes malpractice?
There are countless situations in which healthcare services fail to meet professional standards.
Malpractice may occur in cases of:
- Diagnostic errors: incorrect diagnoses, failure to interpret tests correctly, or failure to prescribe necessary tests.
- Therapeutic errors: poorly executed surgery, inappropriate treatments, or the administration of incorrect care.
- Organisational shortcomings: inadequate hygiene within a healthcare facility, failure to meet health standards, or delays in providing treatment.
- Professional negligence: conduct falling below accepted medical standards, leading to permanent injury, disability or, in the most serious cases, death.
Consequences of malpractice
The damage caused by malpractice may include:
- Physical or psychological harm to the patient.
- Economic losses: additional medical expenses, loss of earnings, or costs linked to reduced income.
- Non-economic damages: biological damage (to physical and psychological integrity), moral damage (emotional suffering), and loss of parental relationship in the event of death.
Levels of liability in healthcare
When medical errors occur, liability is assessed according to the degree of fault:
- Minor negligence (colpa lieve): the
least serious form, involving lapses that could happen even to
careful professionals, particularly in complex cases.
Example: a small error of judgement in an especially difficult clinical scenario.
The law shields doctors from criminal liability for minor negligence if they have followed established guidelines and protocols (Art. 590-sexies Criminal Code, introduced by the Gelli-Bianco Law, 2017). - Gross negligence (colpa grave): a
more serious error caused by evident carelessness, recklessness, or
incompetence.
Example: a surgeon leaving gauze inside a patient after surgery, or a doctor failing to order a basic test despite clear symptoms.
In such cases, the healthcare professional may be held civilly liable (for damages) and criminally liable. - Wilful misconduct (dolo): the most
severe level, involving intentional behaviour.
Here the doctor acts knowing they are causing harm or consciously
accepting the risk of doing so.
Example: prescribing an unnecessary or harmful treatment for financial gain, or falsifying medical records to conceal misconduct.
The criminal consequences are extremely serious.
Summary:
- Minor negligence → generally no criminal liability if protocols were followed.
- Gross negligence → both civil and criminal liability.
- Wilful misconduct → full criminal liability, with severe penalties.
For patients, this means compensation can be claimed in all cases of gross negligence or wilful misconduct.
Even in cases of minor negligence, the healthcare facility may still bear civil liability, since it is required to guarantee safe care.
Medical malpractice in Italy: the numbers
In Italy, around 34,000 malpractice complaints are filed each year, but it is estimated that there may be at least 320,000 unreported cases annually.
Statistics tend to underestimate the true scale of the issue, as many incidents go unreported due to fear of repercussions or because people see legal proceedings as too long and complex.
This often results in patients becoming victims twice over, when in fact turning to a lawyer, who can handle such cases with expertise, would be the best course of action.
Most frequent types of errors
Based on reported cases, the most common errors are:
- Surgical errors: around 38–39% of cases.
- Diagnostic errors: about 21%.
- Therapeutic errors: 11%, often involving incorrect prescriptions or treatment.
- Hospital-acquired infections: 6–8% of reported cases.
The departments with the highest incidence are orthopaedics and trauma care.
Geographic distribution
The highest number of malpractice cases are recorded in southern Italy and the islands (45%), followed by the north (32%) and central Italy (23%).
Impact on the national health system
Medical malpractice is not only a personal tragedy for those affected, but also a serious issue for the national health system.
Every year thousands of suspected medical errors are recorded, with growing numbers of complaints and compensation claims.
This places heavy psychological strain on healthcare workers, who are already under pressure due to lack of resources and difficult working conditions.
To avoid legal risks, some doctors resort to "defensive medicine", ordering unnecessary tests or procedures. This inflates costs and slows down diagnoses.
Italian healthcare thus finds itself in a vicious cycle: outdated facilities, obsolete equipment, organisational issues and staff shortages all lead to exhausting shifts, fatigue and stress.
These conditions increase the risk of human error, lowering the quality of care and fuelling disputes.
Litigation itself represents a major financial burden, further hindering improvements to the system.
Compensation for malpractice: when and how
Suffering harm due to malpractice not only brings physical and psychological consequences, but also unexpected costs, loss of income, and reduced quality of life.
The law recognises the right to compensation, but certain conditions must be met:
- The damage: proven with medical records, certificates, and witness statements.
- Causal link: evidence that the harm was directly caused by the medical error or negligence.
- Fault: proof that the doctor or institution acted negligently, recklessly, or incompetently (minor negligence, gross negligence, or wilful misconduct).
Importantly, while patients must provide evidence, they are not required to prove the error in court, that burden rests with the healthcare side once proceedings begin.
Compensable damages may be:
- Economic: past and future medical expenses, lost income, long-term care costs.
- Non-economic: permanent injury (biological damage), psychological suffering (moral damage), reduced quality of life and relationships (existential damage).
How to report a malpractice case
If you suspect that you or a loved one have been victims of a medical error, it is essential to know the correct steps to take.
Reporting a case that highlights medical liability may seem complex, but with the assistance of professionals it is possible to approach the process safely, increasing the chances of obtaining justice and fair compensation.
The steps:
- Collect medical records: hospital files, test results, prescriptions, and certificates.
- Case assessment: consult a lawyer to evaluate whether there are grounds to proceed.
- Forensic medical report: a medico-legal expert assesses the documents to confirm liability.
- Choose the legal route: civil or criminal, depending on the objectives.
- File a complaint: to the judiciary (Public Prosecutor's Office), the Medical Council, or the healthcare facility's administration.
- Civil action: to claim damages, with court-appointed and party-appointed experts.
Reporting a malpractice case out of court
Before filing a civil lawsuit, Italian law requires that in cases of medical liability an attempt at mandatory mediation must first be made.
a. Collection of medical records and a private
expert's report.
b. Commencement of mandatory mediation before an
accredited Mediation Organisation recognised by the Ministry of
Justice.
c. Possibility of reaching a settlement with the
healthcare facility or its insurance company without going to
court.
d. If no agreement is reached, civil proceedings may still
be initiated.
Reporting a malpractice case in civil court
A civil lawsuit for malpractice is initiated by filing a writ of summons or a petition with the competent Civil Court (generally the court of the place where the medical error occurred or where the healthcare facility is located).
- The writ must be drafted by a specialised lawyer.
- The judge will appoint a court-appointed expert (CTU) who, together with the parties' own experts, will assess whether medical errors or liability occurred and what damages resulted.
Reporting a malpractice case in criminal court
When a medical error is so serious as to constitute a crime (e.g. negligent bodily injury or manslaughter), the victim or their relatives may choose to file a criminal complaint.
In criminal proceedings, the injured party may also join the trial as a civil party to seek not only the conviction of the perpetrator but also direct compensation within the same criminal case, without needing a separate civil action.
The complaint may be filed with:
- the Public Prosecutor's Office at the Court of the place where the incident occurred;
- the Carabinieri or Police, who will forward the complaint to the competent Prosecutor's Office.
Once the complaint is filed, the Public Prosecutor opens a case file and entrusts the investigation to the judicial police.
A court-appointed expert (CTU) is nominated, who—together with the parties' experts—will assess whether there were medical errors, omissions, or negligence.
If liability is found, the healthcare professional or institution may be committed to stand trial.
Possible outcomes of criminal proceedings
- Dismissal if no criminal liability is found.
- Indictment and criminal trial, with possible conviction of the healthcare professional.
- Acceptance of the civil party's claim, with recognition of compensation.
In summary: compensation for medical malpractice can only be obtained by proving the damage, the causal link, and the healthcare provider's fault.
The amounts awarded may cover both concrete financial losses and harm to health and personal life.
How long do you have to file a malpractice claim?
Cases of medical malpractice cannot be reported indefinitely: the law provides for limitation periods, i.e. a time limit within which you may exercise your rights.
In cases of civil liability
The relationship established with healthcare professionals may be contractual or non-contractual. Depending on the type of relationship, the limitation periods differ:
- Contractual relationship between patient and healthcare facility or employed doctor → limitation period: 10 years.
- Non-contractual relationship, e.g. against an independent doctor with no direct contract → limitation period: 5 years.
In both cases, the limitation period runs from the moment the patient discovers the medical error and becomes aware of the harm suffered.
In cases of criminal liability
If the healthcare professional's conduct constitutes a criminal offence (e.g. negligent injury, manslaughter), the limitation periods under the Criminal Code apply, varying according to the seriousness of the offence:
- Negligent injury: from 3 to 6 years, depending on severity.
- Manslaughter: up to 15 years.
Why acting promptly is essential
Waiting too long may mean losing the right to compensation or seeing the offence time-barred.
This is why it is important to consult a lawyer immediately, in order to:
- interrupt the limitation period,
- initiate a medico-legal assessment,
- file the complaint within the deadlines set by law.
In summary: limitation periods vary between 5, 10 or more years depending on the type of liability, but acting quickly is always the best way to safeguard your rights.
Malpractice resulting in death
When malpractice causes a patient's death, compensation may also be claimed by family members.
Unlike typical medical liability (often contractual), claims for loss of a relative are considered non-contractual in nature.
Who can claim?
- Spouse or civil partner,
- Children (including minors),
- Parents,
- In some cases, siblings or unmarried partners with proof of a close bond.
Types of damages that can be compensated
- Damages suffered by the deceased (jure
hereditatis)
- These are the damages endured by the victim between the event and death (e.g. physical suffering, temporary biological damage).
- Such damages form part of the estate and are inherited by the heirs.
- Damages suffered by the family members (jure
proprio)
- Moral damages for the loss of the emotional relationship.
- Economic damages for the loss of financial support previously provided by the deceased.
- Existential damages for the radical change in the family's daily life.
Judicial or extrajudicial action
- Even in cases of death, it is necessary to follow the mandatory mediation procedure before initiating a civil lawsuit.
- Family members may also join as civil parties in a possible criminal trial (e.g. for manslaughter), thereby obtaining compensation within the criminal proceedings.
Timeframes for compensation in cases of medical error
One of the most common concerns for those who suffer from malpractice is how long it takes to obtain compensation.
There is no fixed timeframe, as it largely depends on the circumstances of the individual case and the chosen path (out-of-court settlement or civil trial).
Factors that influence the duration include:
- Complexity of the case: simple cases (e.g. an obvious surgical error) are resolved more quickly than those requiring in-depth medical assessments.
- Need for medico-legal assessments: expert opinions are essential and may take months, especially if several specialists are involved.
- Duration of mediation: the mandatory mediation procedure generally lasts 2–3 months, unless extended.
- Duration of civil proceedings: a civil lawsuit may take 2 to 5 years, depending on the workload of the courts and any appeals.
Out-of-court vs. judicial compensation
- Out-of-court settlement
- Mediation or negotiation with the healthcare facility or insurance company.
- Shorter timeframes: on average a few months to one year.
- Faster resolution, but often with lower compensation compared to what might be awarded in court.
- Judicial route (court judgment)
- Begins with a civil lawsuit before the competent court.
- Longer timeframes: from 2 to 5 years, sometimes more.
- Greater possibility of obtaining higher compensation, especially in serious or complex cases.
In summary: compensation for medical errors can take from a few months to several years, depending on the chosen route and the complexity of the case.
Medical malpractice and foreign patients in Italy
Medical malpractice does not concern only Italian citizens: tourists and foreign residents may also suffer medical errors during treatment or hospitalisation in Italy.
In such situations, in addition to the language barrier, there is often the added difficulty of managing legal proceedings from abroad.
The Boccadutri Law Firm, thanks to its international presence and ability to provide assistance in clients' native languages, represents a key point of reference for those living outside Italy.
For further details, see also: Compensation for the death of a family member in Italy.
Medical malpractice: who to turn to
It is important to distinguish between malpractice and a negative medical outcome that is not attributable to error.
Not every unsatisfactory clinical result amounts to malpractice: some risks are inevitably associated with medical activity and cannot be avoided.
For this reason, each case requires a careful technical and legal analysis, with the support of professionals, to prove negligent conduct and liability.
If you believe that you or a loved one have been victims of malpractice, do not delay. Acting promptly is crucial to avoid losing the right to compensation.
The Boccadutri International Law Firm provides a dedicated team of lawyers to offer a complete and personalised assessment of your case.
FAQ – Medical malpractice
What is medical malpractice?
Harm suffered by a patient due to medical errors, negligence, or hospital shortcomings.
What are the most frequent errors in Italy?
Surgical mistakes, misdiagnoses, inappropriate treatments, hospital infections.
Who can claim compensation?
The injured patient or, in case of death, family members (spouse, children, parents, and sometimes siblings or partners).
How long do you have to file a claim?
10 years with a contractual relationship, 5 without. For criminal cases: 3–15 years.
Civil or criminal proceedings?
Civil proceedings seek compensation. Criminal proceedings also establish the doctor's criminal liability. Both can be pursued together.
What damages are compensable?
Economic damages (medical costs, loss of income, care expenses) and non-economic damages (biological, moral, existential, loss of relationship).
How long does compensation take?
A few months for settlements, several years for civil trials.
Can foreigners sue for malpractice in Italy?
Yes. Tourists and foreign residents have full rights to claim. International law firms can assist with cross-border cases.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
