Colpa medica

[Autom. eng. transl.] Professional negligence in general and, in particular, the professional negligence of healthcare workers, constitutes «one of the most tormented and controversial issues in terms of punishable negligence». Written in 1953 by Battaglini, this sentence remains surprisingly current, although in the meantime such a variety of topics and problems have been crammed into the phrase 'medical fault' as to make the inevitable dose of synthesis underlying the combination of the noun 'fault', of legal origin, with a qualifier of clear professional origin. The expression, by now in widespread use, and to which the Anglo-Saxon terminology of medical malpractice - or more simply malpractice - corresponds in the literature remains effective, but begins to show the wear and tear of time, because nowadays the end of CD medical dominance coincided with the circulation of greater regard for all health professions, so that even in the regulatory texts the most appropriate reference to the fault of health professions prevails. The synecdotic character of the term also arises from the interpenetration of issues that do not exclusively concern criminal guilt understood in a technical sense, and which require the consideration of closely intertwined issues, concerning the causal link, consent, the position of guarantee, the active pluri-subjectivity, causes of non-punishment etc. Moreover, the attraction exercised by medical negligence towards significant institutions of the general part has made the criminal law of medicine a remarkable test case for testing its resistance with respect to the attempts to make the law in action more flexible. Nonetheless, a necessary selection will be made in the discussion, recalling the issues mentioned only as functional to a full understanding of the culpable crimes of the event committed in the healthcare area, and inviting the reader to benefit from ad hoc insights, reported as necessary, to meet any information debts. The examination will unfold along three conceptual sequences: an excursus on the factors that have changed the practices of treatment in the pre-pandemic time, making the intervention of the criminal in the health system highly questionable, will be followed by a reconstructive proposal of a historical-legal nature. , aimed at retracing the evolution of the discipline, jurisprudential outlines and doctrinal contributions, decisive for appreciating the developments and the degree of stability of the solutions reached in a material campus which, at the same time, is significantly affected by socio-cultural influences on the consolidation of jurisprudence and, precisely in the guidelines of legitimacy, one finds an inexhaustible source of contributions of fundamental importance, sensitive to dialogue with the doctrinal formant. The text will close with an examination of the main theoretical-applicative issues, not yet resolved or which have recently emerged in the debate, and which cross the dialectic between the criteria for attributing culpable offenses to health professionals and the assumptions that can justify a withdrawal of punishment.