Civil Cassation sec. III, 07/04/2022, no.11320
The contractual relationship between the patient and the health care facility or physician does not, as a rule, produce protective effects in favor of third parties, because, with the exception of the circumscribed field of health care services pertaining to procreation, the general principle set forth in Art. 1372, paragraph 2, of the Civil Code applies, with the consequence that the autonomous claim for compensation asserted by the patient’s relatives for damages derived to them from the non-performance of the health care obligation, which is relevant to them as an aquilian tort, falls within the scope of extra-contractual liability.
The case
The case brought to the Court’s attention concerns the disappearance of a patient who, three days after being admitted to a health facility for motor rehabilitation, goes missing. The wife seeks compensation for damages iure proprio alleging culpable conduct of failure to supervise. The claim is rejected in both the first and second instance.
In particular, the Court of Appeals of Milan, in upholding the impeached decision, noted that the liability of the entity had to be traced back not to the paradigm of Article 1218 of the Civil Code, but to that of the tort of tort in tort aquila since the plaintiff was a third party with respect to the contract entered into by the spouse. Therefore, the claim could not be upheld because proof of fault and nexus was lacking.
The patient’s wife appealed to the Supreme Court of Cassation, complaining first of all that the claim was wrongly qualified: the Judges should have framed the relationship within the coordinates of contractual liability “inasmuch as the claim for compensation found its source in the breach of the atypical contract entered into by the spouse, from which descended obligations not limited to the administration of medical and pharmacological treatment, but including the duty to safeguard the physical and patrimonial safety of the patient.”
The principle stated by the Court
The Supreme Court rejected the appeal and took the opportunity to reiterate the orientation that has been established over the past few years, according to which the perimeter of the contract with protective effects in favor of third parties must be considered limited only to relationships pertaining to procreation. In this sphere, the Court observes, “the inexact performance of the service forming the subject of such obligatory relationships, in fact, directly affects the position of the unborn child and the father such that the protection against non-performance must necessarily be extended to these subjects, who are entitled to take action in contractual terms for the damages that have derived to them from such non-performance.” Outside of this peculiar area, since the performance of the service forming the subject of the health care obligation does not directly affect the position of third parties, the general rule that it has effect limited to the parties (Art. 1372 Civil Code, art, para. 2); therefore, on the one hand, a “protective effect” of the contract vis-à-vis third parties cannot be predicated, and on the other hand, a category of third parties (even when bound by relevant ties, of kinship or marriage, with the patient) as “third parties protected by the contract” cannot be identified.
Next of kin who have iure proprio claims may indeed have protection, but through Article 2043 of the Civil Code (i.e., under the contract itself, but only if they act iure hereditario).
In the development of the arguments, the College recalls, in essence, the observations already made in Judgment No. 19188/2020 and concludes in these terms: the performance, therefore, must correspond to the specific interest of the creditor (Art. 1174 Civil Code) and not to that of third parties, unless the latter have an interest absolutely overlapping with that of the former.
The extension of the effects of the contract is thus permissible only in borderline cases in which third parties are bearers of an “interest absolutely overlapping” with that of the creditor. And the paradigmatic case would be precisely that of the relationships involved in childbirth and birth.
This, then, is the heart of the argument: however, the question remains as to the scope of this principle and whether the solution adopted is really convincing.
By way of introduction, it is perhaps worth mentioning that, as clarified by the “St. Martin’s Judgments 2019,” according to which, in the context of medical liability, the performance that is the object of the obligation is not recovery from illness, but the pursuit of leges artis in the care of the creditor’s interest.
So, the interest under Article 1174 of the Civil Code held by the patient is that of the performance of professional services in accordance with leges artis with a view to recovery, and the provision of care secundum leges artis-which is what is required of the debtor-represents the “instrument” for satisfying the ultimate goal (the protection of health).
Observations
Among the decisions referred to in the ruling under review, the Supreme Court ruling No. 19188 of 09/15/2020 deserves particular attention (for the purpose of clarifying the line and development of thought). It is therefore worthwhile to start from this pronouncement, because some “key” passages allow to better identify the file rouge around which the new orientation seems to condense.
The case concerned the death of a patient who, during a gastroscopy, suffers cardiac arrest and passes away shortly thereafter. The daughters claimed damages iure proprio under Article 1218 of the Civil Code, alleging poor performance of medical services and a nexus to the death.
The court upheld some of the grounds, but rejected the complaint by which the plaintiffs complained that the relationship was not framed within the paradigm of a contract with protective effects. The College observed:
“The figure of the contract with protective effects toward third parties is justified by the argument that the third party has an interest identical to that of the stipulator, an interest that is affected by the performance of the contract in the same way that the interest of the contracting party, the creditor of the performance, is affected. In the contract between the facility and the pregnant woman, the latter’s interest is the birth of her child: the woman entrusts herself to the health care facility (or doctor) for the purpose of having assistance in childbirth. The performance of the contract, it is noted, satisfies (or impairs, in case of default) the interest of the other parent in the same way as it satisfies (or impairs) the interest of the contracting pregnant woman. There is thus no reason to recognize action from contract to the one and action from tort to the other. The subject obviously deserves more in-depth study, which cannot be done here, but these observations suffice to rule out the possibility that the figure can reasonably be used in the present case: here, in fact, the daughters’ interest is not the same as that inferred in contract by the mother. The latter had relied on the facility for health care, and the breach of the obligation assumed by the facility injured two different goods: the health, precisely, of the woman (or life, more precisely), and the parental relationship instead as to the daughters. Thus, the reason that justifies the figure of protective effects toward third parties is missing: the identity of the interest involved by the performance of the contract.”
It seems to the writer that the arguments just reported-referred to in the same terms by the Supreme Court in Judgment No. 11320/2022-have some shadow lines.
Indeed, it could be argued that the two hypotheses compared by the College do not present significant divergences.
In the case of the gynecological contract, the mother has a twofold interest: the secundum leges artis provision of care, in order to see her own health and that of the fetus (the latter of which, in turn, is considered a protected third party) protected. The father-who is not a party-has an identical interest in having the integrity of the pregnant woman and her child safeguarded through proper performance of the medical act. And this is because, in the case of malpractice injury, it would be his right to the integrity of affections within the family that would be harmed.
It does not appear, then, that there is any difference with the case that is the subject of the decisum in Judgment No. 19188/2020.
The daughters of the lady have an interest in the medical act being carried out properly with a view to the mother’s recovery, just as the father of the unborn child has an interest in the medical services being carried out properly so that the health of the pregnant woman and the baby are safeguarded.
And this is because both the former and the latter are holders of a position that is in some way “dependent,” or if you will, “conditioned” by the (bad) performance of the contract: the injury to the psycho-physical integrity of the spouse attributable to the impervious doctor is the “means” through which the violation of their right to the intangibility of the parental relationship is implemented.
Thus, the assumption of Cass. 19188/2020 that the daughters’ interest is not the same as that inferred in the contract by the mother does not seem supportable. The latter had relied on the facility for health care, and the breach of the obligation assumed by the facility injured two different goods: the health, precisely, of the woman (or life more precisely), and the parental relationship instead as to the daughters.
In fact, even in the case of the gynecological contract, there is an injury to two different goods: of the health (of the unborn child/pregnant) on the one hand, and of the parental relationship in the hands of the father on the other.
Nor is the conclusion convincing that the reason for the figure of protective effects toward third parties is thus missing: the identity of the interest involved in the performance of the contract.
In fact, it seems to be possible to say that the daughters have the same interest as the creditor party, that the performance be properly performed to protect, precisely, the health (of the mother herself); this is the logical prius, because it is the impairment of the psycho-physical integrity of the parent that generates the violation of their right to the intangibility of affections.
The position of “closeness” justifies the interest in the proper delivery of care to the “relative” and, at the same time, grounds the right to compensation for damages (for violation of family rights).
It is the emotional bond with the pregnant woman and her child that explains why the father has an interest in the protection of their health (and thus in the perfect performance of medical services).
And it is likewise the bond with the mother in the case of Cass. 19188/2020 that explains why the daughters have an interest in the preservation of her integrity.
Put another way: those who are in a situation of “proximity” with the patient suffer an impairment of their own right – the intangibility of affections – which finds its cause in the improper execution of the contract (of care): it is precisely for this reason that they are the bearers of an “interest” (in the diligent performance of the service) that seems perfectly superimposable to that of which the creditor himself (the sick person) is the owner.
After all, it is precisely the Supreme Court in Judgment No. 19188/2020 that affirms, referring, moreover, only to the case of the pregnant woman, that the third party has an interest that is affected by the performance of the contract in the same way that the interest of the contracting party, the creditor of the performance, is affected.
It also gives pause for thought that Cassation No. 11320/2022 affirms that in the case of relations pertaining to procreation, the improper performance of the service directly affects the position of the unborn child and the father while, outside this sphere, the performance of the service forming the object of the health care obligation does not directly affect the position of third parties who would suffer mediated or reflected damages.
The improper performance of the contract of care acts, for third parties, as a tort and produces to the relatives damages that are undoubtedly “direct,” otherwise the protection under Article 2043 of the Civil Code would not be explained either.
Ultimately, in light of these initial reflections, it seems that the criterion of “identical interest” does not mark, clearly and distinctly, the difference in protection and is unable to effectively circumscribe the perimeter of the contract with protective effects.
Conclusions
The remarks made so far certainly do not have the pretension or ambition to solve a problem that seems to be of great complexity.
The fact is that the figure of the contract with protective effects lends itself to more than a few criticisms and raises more than one perplexity both because its foundation is not clear and because if it is true – as most recently affirmed by Supreme Court No. 11320/2022 – that from good faith and diligence do not arise additional obligations having as their object services to safeguard third parties.
It is then hard to see how such protective effects can instead be produced in favor of the father and the newborn child (and siblings) in the case of relations inherent in birth.
In conclusion, the hybrid solution found by the Supreme Court seems satisfactory given that, as we tried to expound just above, the criterion that relies on the “identity of the interest” seems in truth rather elusive and such not to perform that function of discrimen that one would like to attribute to it.
