Dragone Loffredo Cestaro & Associates Law Firm has been defending infected blood victims (herein after “IBVs”) for over twenty years. Dragone Loffredo Cestaro & Associates attorneys have been litigating before Italian courts and the European Court of Human Rights, representing IBVs who have been transfused in hospitals, or hemophiliacs who periodically take blood products.
For this reason, we are following closely the so-called “contaminated blood scandal”in the United Kingdom and its latest developments.
According to official reports of the British Parliament[1], between the 1970s and 90s, an estimated 32.718 people were infected with the hepatitis C Virus (HCV) following NHS treatment with blood products contaminated with the virus. More than 1.500 others were infected with the Human Immunodeficiency Virus (HIV) in a similar way.
Patients were allegedly given products imported from commercial organizations in the US. Among the paid donors were high-risk groups including prison inmates and injecting drug users.
However, in United Kingdom, unlike in Italy, no compensation for damage have ever been paid to IBVs or their families.No government, healthcare or pharmaceutical entity in the UK has admitted publicly any liability in the scandal.
Successive governments, both Labour and Conservative, have been criticised for their handling of the case. Some limited support has been provided to selected individuals through charitable trusts, and recently by the so-called “Infected Blood Supported Scheme”[2](herein after “IBSS”).
2017 has been an important turning point for IBV in the United Kingdom. A group legal action has been brought against the government on behalf of more than 500 people[3]. Furthermore, after years of increasing pressure from campaigners and MPs, the UK Prime Minister announced a full wide public inquiry into the scandal. On April, 30 2019 the government has announced its intention to increase the financial support for beneficiaries of the IBBS.
In Italy the situation is quite different.
In 1992, the Parliament enacted the Law n.210[4], which establishes a life-long indemnification payment to IBVs. The affected person must submit promptly an application to the competent Medical Committee (“Commissione Medico Ospedaliera”), which carries out an administrative proceeding.
The Medical Committee grants the requested indemnification payment when it is established that the infection and the consequent post-transfusion disease suffered by the applicant (viral hepatitis, HIV) was causally linked with the blood transfusions or emoderivates he/she had received. The Law n. 210/1992 also determines the amount of the granted payment, based on the severity of the post-transfusion disease (see the eight different categories indicated in the chart below).
In 2010, the Italian Government enacted the Law n. 78, which discriminatorily diminished the amount of the payments provided for certain groups of IBVs. In 2011, the Italian Constitutional Court declared the Law n.78/2010 unconstitutional[5]. This notwithstanding, the competent State bodies failed to equally grant the legitimate payments to the IBVs.
Dragone Loffredo Cestaro & Associates challenged the State by lodging a complaint with the European Court of Human Rights on behalf of 162 IBVs.The Court upheld Dragone Loffredo Cestaro & Associatesapplication and condemned Italy with a pilot judgment[6], holding the State accountable for the breach of Article 6(1) (right to a fair trial), and Article 1 Protocol 1 (protection of property), read in combination with Article 14 (prohibition of discrimination) of the Convention.
As a result,the payments provided to IBVs have been increased by about 40%, as shown in the following table (amounts revalued in 2018):
| Category | Annual payment | Monthly payment |
| I | € 10.534,32 | € 877,86 |
| II | € 10.373,08 | € 864,42 |
| III | € 10.212,91 | € 851,08 |
| IV | € 10.052,01 | € 837,67 |
| V | € 9.890,69 | € 824,22 |
| VI | € 9.729,43 | € 810,79 |
| VII | € 9.568,45 | € 797,37 |
| VIII | € 9.407,19 | € 783,93 |
At the same time, since the ‘90s thousands of IBVs filed civil complaints with domestic courts against the Ministry of Health, asking for compensation for the damages suffered due to the infected blood transfusions.The granted payments were in fact insufficient to fully repair the losses and damages incurred to the primary victims and their relatives, especially in the case of death.
Over the years, Dragone Loffredo Cestaro & Associateshas assisted hundreds of clients in the aforementioned civil procedures, building a strong expertise in this field.
The requested Court upholds the civil action for compensation when the claimant provides evidence of two main elements: i) the causal linkbetween the transfusion/emoderivate and the infection; and ii) the negligenceof the competent State authority, i.e. the Italian Ministry of Health.
According to the case law (Corte Cassazione S.U. n. 576/20018), the Court holds the Health authorities accountable when it is established that they had failed to carry out the control required by law, and they have not implemented the due precautions that were known at the time of the facts.
In the civil cases brought by IBVs and IBVs associations, the Health authorities are accused of violating the necessary rules of precaution and diligence, as identified by the scientific literature and international guidelines available at the time of the events.
In the proceedings it is therefore necessary to prove that the damages and loss suffered by the victims could have been prevented and avoided if the competent State authorities had implemented the controls required by the law, in accordancewith the scientific standards.
For this reason, in order to establish the defendant’s civil liability Dragone Loffredo Cestaro & Associatesattorneys usually present in Court an extensive collection of the scientific literature of the period (from the 60’s to the 90’s) and the relevant Italian legislation. In the proceeding Dragone Loffredo Cestaro & Associatesattorneyspoint out the importance of the international guidelines and medical recommendations on the best practice governing blood transfusion and the blood products, applicable in Italy and in Europe.
In the proceedings the judge usually appoints independent forensic medical expertsin order to assess both the causal link and the defendant’s negligence. The forensic experts also estimate the severity of the post-transfusion disease and the percentage of physical damage suffered by the IBVs.
When the Ministry of Health’s liability is established, the Italian Courts award the claimant compensation for the damages, taking away the payment that the IVB may have already received pursuant to Law 210/1992.
Our Law Firm, together with other colleagues throughout Italy, won a significant number of lawsuits against the Ministry of Health. The State has been thus sentenced to pay considerable damages to the IVBs. This consistent case law led the Italian Government to enact Art. 27 bis of the Law 114/2014, with the aim to reduce litigation.
Pursuant to this provision, all the legal actions that have been initiated before December 31, 2017 can be settled with a sum of 100.000,00 euros upon requestsubmitted by the lawyer and the client. This payment is granted by the Ministry of Health as a fair compensation to the victim, who in turn waives any action that is pending against the State.
Therefore, unlike in U.K. so far, in Italy according to a well-established case law the Ministry of Health could be held accountable for the damages suffered by the IBVs, in addition to the indemnification payment described above.
In conclusion, the so-called “scandal of infected blood” that seemingly broke out in Italy and in the United Kingdom clearly present similarities. Although the two legal systems are different, it is argued that certain legal arguments and strategies can operate transnationally, especially when international medical standards are discussed together with epidemiologic evidence and causal relationships.
Will Italian case law lead the way for strategic litigation in the United Kingdom?
[1]https://haemophilia.org.uk/wp-content/uploads/2017/02/appg_hcb_fr.pdf.pdf
[2]https://www.nhsbsa.nhs.uk/england-infected-blood-support-scheme
[3]http://www.collinslaw.co.uk/contaminated-blood
[4]The full text of the Law here http://www.salute.gov.it/imgs/C_17_normativa_1556_allegato.pdf
[5]The full judgment here https://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2011&numero=293
