ITALIAN REPUBLIC ON BEHALF OF THE ITALIAN PEOPLE
THE COURT OF LONDON SECTION V
CIVIL
In the person of the Examining Magistrate, in a single Judge, dr. Damiano Spera,
gives the following Judgement
entered in the civil case No. RG 84267 / 2005, sponsored by ZL represented John Lawrence and Ingino
- Actor -
against
DR. Represented by GM. Domenico Mugnano
- the defendant - and
NEW XSRL represented by. Domenico Chindamo
- defendant -
hearing for clarification of the conclusions in On 03.12.2008, the parties concluded as the minutes of the proceedings.
OF THE PROCESS
By summons duly served, Mr. LZ sue the dr. MG and New X. order to hear Ltd, jointly and severally, to pay for all damages (including damages biological, existential, moral and equity) in the face of dental care provided by Dr. G. on 17.05.2003 at New health X. Ltd.
instituted the contradictory, the defendants were in separate appearances, which ended for the rejection of applications. The GI
partially admitted the evidence offered by the parties. The advice provided
GI Technical Office on injuries suffered by the plaintiff. So
hearing on 03.12.2008, the parties set out the conclusions as to the minutes. The GI
05.03.2009 referred the case to the oral hearings, pursuant to art. E 281 cpc, at the same hearing device and read out a concise statement of the factual and legal reasons for the decision.
- GROUNDS -
believes that this court should declare the responsibility of both the defendants and New MG X. Ltd in producing the harm suffered by the plaintiff.
On 17.05.2003 Mr. Z. went at the doctor's New X. complaining of discomfort common Ltd. dependent dell'emiarcata lower left was visited by Dr. G. which identified the cause of dental pain in the element n. 37, proposing the avulsion.
Attach the plaintiff that the diagnosis was outlined without any radiographic investigation.
During the execution of 'intervened avulsion fracture of the said dental element to be extracted.
At the end of the effect of anesthesia, Mr. Z. found suffering borne by the treated area, acuitesi with the removal of stitches.
dine at the Italian Institute for Dental, the pain persists, the actor was found after-effects or outcomes in divorced No corresponding element 37, with the presence of bone fragments at the edge of the alveolar bone, which were removed. Next
dental visits noted damage to the trigeminal branches.
Given the persistence of severe pain in July 2007, in the course of proceedings, the actor performing an nerve decompression of the left mandibular alveolar nerve.
from the documents and papers of proceedings by the processing and investigation, in particular, the report of CTU, is tested:
that there was incompetence, recklessness and negligence in the health behavior of dr. MG;
that the intervention was avulsion 17.05.2003 easy to perform;
which required a preliminary investigation showed a radiographic anatomic abnormality that would be borne by the roots, unlike the approach by targeting intervention avulsion;
that professional misconduct is attributable solely to the work of Dr. agreed. G., since the interventions were performed after only mitigated the damage suffered as a result of culpable conduct of Dr. G.;
that there was a biological damage for loss of 4% of the tooth and the sequelae consisting of paresthesia all'emifaccia left the plaintiff;
which was granted a disability Temporary:
- 100% for 2 days (days of hospitalization for decompression surgery in 2007);
- 75% for 6 months;
- 50% for 2 months;
- 25 % for 3 months;
- 10% for a month;
that the claimant at the hearing on 05.03.2009, he was abandoning his claim for compensation for financial loss from disability specific job;
that medical expenses incurred and documented by the plaintiff amounted to € 8,293.61. The Court recognizes, as indeed also have full disbursement made in July 2007 for nerve decompression of the left mandibular alveolar nerve. Indeed, issue of causal relationship with health care costs in the production of the offense conduct and appears indisputable that the injured person is entitled to recover their physical integrity, to take advantage of medical facilities and his confidence, especially after suffering all the consequences prejudicial as a result of the intervention in question (see Cass. No 16073/02);
that the costs were estimated by the actor's future in CTU € 2,500.00;
This court agrees with and the conclusions reached by the CTU, with the correct method and free from defects or other logic.
Therefore, Dr. devesi held liable. M. G. and New X. Ltd in producing the harm suffered by the plaintiff.
In fact, the United Sections, with a ruling Jan. 11, 2008, No 577, reiterated that "as regards the responsibility of the hospital to the patient is irrelevant whether you are a private nursing home or a public hospital because they are substantially equivalent to the regulatory obligations of the two types of structures to the user services, and also in case there is a complete assimilation of the structure private to the public as to the rules of civil liability in view of the fact that these violations affecting the good of health as a right protected fundamental by the Constitution, without the possibility of differences or limitations of liability for damages according to the different nature, whether public or private healthcare facility. This Court has consistently placed the responsibility of the hospital in the contractual liability on the ground that the acceptance of the patient in the hospital for admission or outpatient visit, leads to the conclusion of a contract. "
Specifically, the relationship that develops between the patient and nursing home (hospital or entity) "has an unusual source in contract performance corresponding protective effects against the third party, from which, on the obligation to pay ... rise up against the consideration of nursing home (or institution), along with those of a "broad sense" hotel, the obligations of provision of auxiliary medical staff, paramedical staff and all the equipment necessary dell'apprestamento , also in view of possible complications or emergencies "(Cass. Civ., July 14, 2004, No. 13066).
It follows, then, that the responsibility for nursing home care of the patient is contractual under Article. 1218 cc and can achieve both to the bonds directly to its cargo, which, pursuant to Art. 1228 cc, the failure of medical services provided directly by health-professional "as his agent must, in the absence of an employment relationship, however, there is a connection between the provision made by him and his business organization "(Cass. Civ. No 13066/2004).
In this case, it is uncontested that Dr.. G. Ltd. is an employee of New odontoma in the light of principles set out in law follows the liability of both defendants. About
quantum, this court considers, in light of expert opinions that the claimant has suffered financial loss amounting to € 2,500.00 and € 8,293.61. The claim for monetary revaluation it should be pointed out that should be reviewed to date only the latter figure, expected that the remaining sum of € 2,500.00 to effect a future expenditure. Therefore, re-evaluated today the sum € 8,293.61, the same is (rounded) € 9,290.00.
also thinks the Court that the plaintiff has indeed suffered the biological damage that is caused by the damaging mental and physical abuse of the person, who, as an event internal to the fact detrimental to the health, must necessarily exist in the presence of established injury, and that is independent from damage related to the production capacity of income. For the purposes of compensation, the biological damage must be considered in relation to the entirety of its effects injurious respect to all activities, situations and relationships in which the person exerts itself in the life of their own lives, not only, therefore, with reference to the productive sphere, but also with reference to the spiritual, cultural, emotional, social, sporting and any other area, and how the subject expresses his personality and that all activities during the human person "(as the Constitutional Court, No 356/1991, see also Constitutional Court n. 184/1986).
Moreover, recently the Supreme Court in Sec. together (Case No. 26972/2008), inter alia, held that, under the non-pecuniary damage, the reference to certain prejudices, variously referred to as (non-pecuniary damage, biological damage, damage from loss of the parental relationship) meets requirements descriptive, but does not imply the recognition of distinct categories of damages. E 'for the court to ascertain the actual substance of the alleged injury, regardless of the name given, identifying a negative impact on value-man are reviewed and ensuring their full compensation. The judge instead of a separate settlement for pain and suffering in terms of a proportion of the biological damage (a process that results in duplication of damage), to conduct a proper customization of the biological assessment of damages by assessing consistency in their effective physical and mental suffering endured by the victim in order to reach the rest of the damage in its entirety.
Well, given the established disability, age at the time of the incident (55 years), sex and living conditions of the plaintiff, of the evidence for, the CTU, the inconvenience of further interventions, tabular date criteria normally adopted by this Court for the settlement of the biological damage permanent, temporary and moral, of the particular physical and psychological suffering that accompany the dental examination in involving the trigeminal nerve and the mandibular alveolar, stimasi fairly clear, for Total Compensation of non-pecuniary damage from injury to the right to health, the sums already revalued to Euro 5,000.00, resulting in permanent disability, and Euro 20,000.00, resulting in long and very painful and debilitating temporary disability. About
amounts so paid, the Court finds that the plaintiff still sought compensation for all non-pecuniary damage suffered, also "held in varying degrees of justice, as well as damage existential outstanding equity as well as interest in and appreciation monetary union ". It is therefore for the Court to give the exact nomen juris of damage to the items listed by the plaintiff and it is possible, therefore, allocate to each of these items amounts than those requested.
the request for damages it should also call the existential view from the judgment No 26972/2008: "The general category of non-pecuniary damage is not susceptible to division into subcategories variously labeled. In particular, it may be referred to a generic subcategory called "existential damage" because this means you end up wearing even the non-pecuniary damage nell'atipicità. Ultimately, "existential damage as a separate category of damage is not given more talk." In any case, where the court has dismissed the damage biological and suffering resulting from non-residual space for additional compensation of existential bias, because everyone already included in those already settled, resulting in some duplication, otherwise damages the same damage.
Therefore, the damages suffered by the plaintiff to be paid in a total of € 36,790.00 (total re-evaluated to date).
The said amount paid should be recognized interest compensation for the damage resulting from failure to timely monetary equivalent enjoyment of the property lost.
countervailing interests - which has become the second address of the United Sections of the Supreme Court (see Case No. 1712/1995) - payable from production event of damage until the time of liquidation during this period, compensatory interest can be calculated by applying a weighted average annual percentage rate on the injury re-evaluated.
This interest rate is obtained by "weighting" the legal interest on the amount paid over that - "devaluation" on the date of tort law, according to ISTAT cost of living index - increases month to month, using the same indices revaluation, until the date hereof.
From today, the day of settlement, the actual payment shall commence legal interest on the revalued amount.
Therefore, in light of the criteria set out, the defendants dr. MG and New X. Ltd., jointly and severally, shall be ordered to pay in favor of the plaintiff, the total sum of Euro 36,790.00, paid in current coin as well: *
compensatory interest, the weighted average annual rate of 3% on the sum of Euro 36,790.00 from 17.05 .2003 (date of avulsion of the intervention) to date;
* interest at the statutory rate on the sum of Euro 36,790.00, the date of this sentence to the actual balance.
The costs of the Technical Advisory Office of the defendants be ordered to pay jointly and severally.
It follows the conviction of the defendant loses the dr. MG and New X. Ltd., jointly and severally, to pay plaintiff legal costs including those of CTP.
PQM
The Court of Milan, finally saying, hereby orders:
* Dr. declaring the defendants' liability. MG and New X. Ltd in the production of the damage suffered by;
* Dr. sentencing the defendants. MG and New X. Ltd., jointly and severally, to pay in favor of LZ, the sum of Euro 36,790.00, plus interest as specified in motivation;
* raises the costs of the expert witness against the defendants, jointly and severally;
* sentence the defendants, jointly and severally, to pay plaintiff legal costs, which in liquid € 1,131.71 for disbursements, advances and expenses CTP, € 1,913.00 for rights, € 3,180.00 for attorney's fees, € 636.63 for general expenses, as well as CPA and VAT;
* declares the above provisionally enforceable;
* The above is intended to be published by subscription by this court and shall be immediately filed in the Registry.
Milan, 05.03.2009.
The Examining Magistrate in a single Judge
Law Report 
