L'azione diretta nella responsabilità medico - sanitaria nel nuovo regime di assicurazione obbligatoria: il nodo gordiano della disciplina transitoria si scioglie per ragioni sistematiche

The essay addresses the nature and the transitional provisions of the injured party’s direct action against the insurance company in the context of medical and healthcare liability, introduced by the Gelli-Bianco Law (Law no. 24/2017) and implemented by Ministerial Decree no. 232/2023. The structure of this legal provision is revisited, following the established systematic classification of the direct action in Compulsory Motor Vehicle Insurance (RCA) under Article 144 of the Italian Private Insurance Code (CdA), which is understood as a substantive legal provision establishing an autonomous right for the party injured by medical malpractice against the liable party’s insurer. The investigation into the new and specific mandatory insurance regime in this field confirms that this action can be exercised only on the grounds of a mandatory insurance relationship, that has been duly brought into compliance with the new minimum requirements set forth by Ministerial Decree no. 232/2023. The essay thus criticizes the case law of the courts of first instance which erroneously attributes the nature of a mere power of action to the action under Article 12 of Law no. 24/2017. Conversely, the strict limits placed on the objections that the insurance company can raise concerning the contractual relationship with the liable party confirm the comprehensive substantive regulation of this autonomous right, which is intrinsically linked only to the new mandatory insurance system.