Abstract
[Autom. eng. transl.] After safety at work and safety on the road, even the third largest recipient of criminal negligence - medical malpractice - was reconfigured by the legislator in the name of 'safety' of care, as a "constituent part of the right to health", by pursuing "in the interest of the individual and the community" (art. 1 Law 24/2017). If the attention given to the management of clinical risk and an organizational approach to error in health care is appreciable, based mainly on the circulation of data, good practices and just culture, it must make us reflect the change of objective: wanting to use a civil law conceptualization now worn out, the accent is placed more on the obligation of means to make the care safe than on the obligation of the result of achieving the patient's health. The turning point contains in itself a metathoric folding already present in the Legislative Decree n. 81 of 9 April 2008, where the positivistic faith in the abilities of science and technology to eliminate the risks of illness and death of workers, has been replaced by a profession of realism that admits the existence of risks that can never be eliminated, but susceptible of being contained , and which recognizes that the improvement of the patient's health conditions cannot be achieved except through a previous step, consisting in securing the care given to him. Far from being the fruit of a 'weak thought', the space occupied by the security of care explains why, in the economy of the legislative provision, the provisions of penal relief - which certainly do not represent the fulcrum of the reform - have been calibrated based on at the new value, expressing significant changes with respect to the structures defined by Legislative Decree 158/2012, the so-called Balduzzi decree; and this although these variations have manifested themselves through a poor and incomplete normative technique, which has determined, as an immediate consequence, the expansion of a jurisprudential brand right, with the intervention, a few months after its entry into force of the law, of the United Sections of the Court of Cassation.
Translated title of the contribution | [Autom. eng. transl.] The criminal liability of operators in the health professions after L. n. 24/2017 and the first jurisprudential reports |
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Original language | Italian |
Title of host publication | Diritto e difesa in ostetricia e ginecologia |
Pages | 209-222 |
Number of pages | 14 |
Publication status | Published - 2019 |
Keywords
- Cassazione S.U. Mariotti
- esercenti professione sanitaria
- imperizia
- legge n. 24/2017
- linee guida
- responsabilità penale