Should the Maltese courts apply the doctrine of non-cumul to doctor-patient relationships?

Abstract

As Massimo Bianca states, a doctor-patient relationship creates an overlap between contractual and tortious liability. On a general note, foreign jurisdictions (namely the French, Italian and English) which are under study in this paper, do allow the concurrent existence of the two regimes in the field of medical liability. However, the Maltese position regarding the matter is rather obscure and the reasoning is two-fold; firstly because we lack an adequate legislative framework for these circumstances and secondly, since, throughout the years, our courts have come up with an inconsistent line of jurisprudence when tackling such matters. Following an analysis of local medical liability cases in a chronological manner, our courts’ reasoning shifted from regulating the doctorpatient relationship by applying tort law rules – to identifying the possibility to invoke both tortious and contractual principles, thereby allowing cumul – to a situation where the aforementioned relationship is governed by the law of contract. In this paper, contractual and tortious regimes have also been compared and contrasted in order to establish whether the co-existence of both should be tolerated in the Maltese medical sector. The outcome of this exercise clearly indicates that having a contractual foundation rather than a tortious one is more beneficial to the patient since the former can possibly lead to the award of moral damages and poses a longer prescriptive period. Therefore, this paper favours the application of Non-Cumul, as limiting the courts to decide a medical liability case on a purely contractual basis will ascertain the granting of an effective remedy to the patient and would also lead to more consistency in court decisions.