Who pays if the doctor makes a mistake?

Here is an important ruling by the Court of Cassation on the subject of medical liability: Court of Cassation Civil, Order No. 9949 of 17 April 2026.

 It sheds light on the relationship between a healthcare facility and a doctor in the event of a medical error that has caused harm to a patient. The question is simple: if the hospital compensates the patient, can it then claim the money back from the doctor who made the error?

This action is known as ‘recourse’.

The Gelli-Bianco Law (Law No. 24/2017) established a clear rule: the facility may only exercise recourse if the doctor acted with intent or ‘gross negligence’. This means that for simple carelessness or a minor error, the financial risk remains entirely with the hospital. The Court of Cassation, in the ruling in question, clarifies that this is not an exception, but the fundamental rule of the system.

The aim is to balance responsibilities: the healthcare facility assumes the ‘business risk’ associated with its complex organisation, whilst the doctor is personally liable only for the most serious breaches.

In confirmation of this mechanism, the law itself obliges every doctor working in a healthcare facility to take out, at their own expense, specific insurance cover for gross negligence.

According to the Court of Cassation, this obligation demonstrates that the legislator regarded recourse as a normal and anticipated eventuality within the system, not a rare occurrence.

It is, of course, quite possible for the facility and the doctor to agree contractually that recourse should also apply in cases of minor negligence. The insurance policy will obviously need to be reviewed as well.

In practice, the Supreme Court is telling us that the system is a team game with defined roles: the healthcare facility absorbs the minor blows resulting from minor errors, but for the ‘cannonballs’ of gross negligence, the doctor has their own personal goalkeeper, namely the insurance. Hoping, of course, that the real winner is always the patient’s health and that no one ever has to play this game. If not, at least now we know who foots the bill... and who doesn’t

Last update June 2026