Healthcare Liability and Mediation: The Court of Cassation Clarifies the 90-Day Term with Order No. 15466/2025

In the complex landscape of civil law, issues related to healthcare liability represent an area of particular delicacy, intertwining the protection of citizens' health with the need for legal clarity and certainty. Law No. 24 of 2017, known as the Gelli-Bianco Law, introduced important innovations in this matter, including the mandatory attempt at conciliation through mediation or prior technical assessment as a condition for the admissibility of legal action. But what happens if, after attempting mediation, a specific deadline is not met to initiate the lawsuit? On this crucial point, the Court of Cassation has intervened with Order No. 15466, filed on June 10, 2025, providing a fundamental interpretation that clarifies the boundaries of admissibility.

Healthcare Liability and the Role of Mediation

Compensation for damages arising from medical malpractice is a highly topical issue. The Gelli-Bianco Law sought to balance the need to protect victims of medical negligence with the requirement to contain litigation and promote out-of-court settlements. For this reason, Article 8 of Law 24/2017 introduced, for lawsuits seeking compensation for damages from healthcare liability, the obligation to first attempt conciliation, whether through mediation or through prior technical assessment (ATP) pursuant to art. 696-bis of the Code of Civil Procedure. This step is a true "condition of admissibility": without it, the judge cannot examine the merits of the dispute. The objective is twofold: on the one hand, to decongest the courts; on the other, to offer parties a more informal and less expensive venue for reaching an agreement.

The Crucial Point: The 90-Day Term and Ruling 15466/2025

The issue on which the Supreme Court ruled, with Order No. 15466/2025 (President G. T., Rapporteur P. P.), arises from the interpretation of Article 8, paragraph 3, of the Gelli-Bianco Law. This provision sets a ninety-day term for initiating a cognitive judgment to ensure the persistence of the "effects of the claim." The question that arose was: does this 90-day term also apply when the condition of admissibility has been met through mediation, and not through ATP? The Court of Appeal of Ancona, with a ruling of 25/05/2022, had adopted a position that was subsequently overturned and remanded by the Supreme Court.

The Court of Cassation, in the case pitting S. P. M. against A., provided a clear and definitive answer, crystallized in the following maxim:

In matters of claims for damages arising from healthcare liability, Article 8, paragraph 3, of Law No. 24 of 2017, in providing for a ninety-day term for initiating a cognitive judgment to ensure the persistence of the "effects of the claim," does not apply when the condition of admissibility has been met through mediation, in relation to which a procedural preclusion – not expressly provided for by the norm – cannot be judicially identified praeter legem, thereby limiting access to judicial protection.

This ruling is of extreme importance. The Court has established that the ninety-day term does not apply if the condition of admissibility has been met through mediation. The reasoning of the Supreme Court is based on a cornerstone principle of our legal system: it is not possible to identify a procedural preclusion praeter legem, i.e., beyond what is expressly provided by law, especially when it would limit access to judicial protection. In other words, if the law does not explicitly provide for a forfeiture period for initiating a lawsuit after mediation has been attempted, the judge cannot create one, as this would prejudice the citizen's right to access justice.

Practical Implications for Patients and Professionals

Order No. 15466/2025 has significant practical implications for all parties involved in healthcare liability disputes:

• Greater Legal Certainty for Patients: Individuals harmed by alleged medical malpractice can now rely on greater procedural clarity. Once mandatory mediation has been attempted, they will no longer be exposed to the risk of preclusion due to failure to meet a 90-day deadline not expressly provided for such an event. This strengthens their position and protects their right to access justice.
• Guidance for Lawyers: For legal professionals, the ruling provides authoritative guidance. It is now settled that, once the mediation process has concluded, legal action can be taken without the anxiety of a peremptory 90-day deadline that, if missed, could have jeopardized the entire case.
• Principle of Procedural Legality: The ruling reiterates the importance of the principle of strict legality of procedural preclusions. Limitations on the exercise of a fundamental right such as access to justice must be explicitly provided for and cannot be inferred through interpretation.

Conclusions: A Step Forward for the Protection of Rights

The intervention of the Court of Cassation with Order No. 15466 of 2025 represents an important clarification in a sensitive sector such as healthcare liability. By emphasizing that the 90-day term does not apply after mediation, the Supreme Court has reaffirmed a fundamental principle of our legal system: the protection of the right of access to justice. This decision offers greater legal certainty to citizens and legal professionals, ensuring that procedures do not become an insurmountable obstacle but an effective tool for resolving disputes. It is a virtuous example of how jurisprudence can contribute to making the legal system fairer and more transparent.