Verso una recuperata determinatezza della responsabilità medica in ambito penale? Il ruolo del consenso alla luce di Cass. s.u. 21-1-2009, n. 2437

Translated title of the contribution: [Autom. eng. transl.] Towards a recovered determination of medical liability in criminal matters? The role of consent in the light of Cass. on 21-1-2009, n. 2437

Research output: Contribution to journalArticle

Abstract

[Autom. eng. transl.] The work deals with the delicate problem of the juridical, and in particular penal, relief of the medical activity carried out without adequate coverage of the patient's consent, in cases where the consent itself is necessary: a problem which has given rise, as it is known, to complex jurisprudential events and to a considerable debate in doctrine. The analysis is carried out immediately highlighting the connection between the theoretical question in question and the dangerous spread of the so-called "defensive" medicine, oriented to the assumption of attitudes, above all omissive, no longer oriented to the best information and the best safeguard of the patient, but to minimize the risk, for the doctor, of litigation following the adoption of a clinical or surgical initiative. This, above all, in relation to the extreme difficulty, for the health personnel, of governing a priori the danger of ex post disputes about the timely and explicit coverage by the consent of every possible outcome related to the therapeutic activity, especially with regard to verification of adverse events. In this context, the contribution adheres to the assumption of the sentence of the joint Cassation Criminal Court of 21 January 2009, n. 2437, according to which the medical activity carried out in compliance with the therapeutic indication ("lege artis") that produces an improvement in the functionality of the organism cannot give rise, even in the absence of an adequate consent, to the crime of injury and neither although it represents an injury to moral freedom, to the crime of private violence: therefore, it assumes importance as an exclusively civil and disciplinary offense. In particular, the reasons for which it does not seem reasonable to arrive at a totally subjective notion of the concept of disease and for which, in parallel, that concept must remain understood in the sense of a functional alteration of the organism, and not merely anatomical, are examined in depth. of fabrics. From this point of view, it is highlighted how the problem of the respect due to the consensus around the activation of a therapeutic initiative remains separated from the problem concerning the evaluation of the therapeutic character of a health behavior: which, moreover, raises the problem related to the need for a sufficiently determined and shared identification of the criteria of conformity of the medical activity to the "lex artis". It also follows that the fact that a therapeutic act is not adequately covered by consent but conforms to the "lex artis" remains unsustainable to produce criminal liability even in the event of a possible ominous outcome: provided that the violation of legal rules inherent in that act does not constitute a violation of rules aimed at avoiding damage to personal safety (since it is an act accredited as suitable, rather, for the protection of health). Taking this into consideration, we take a position on the inappropriateness of initiatives, given the risks associated with defensive medicine, aimed at introducing the crime of an arbitrary medical act. Rather, it is believed that compliance with the rules on the subject of consent in health care activities can be more effectively pursued through extra-criminal procedures, among which there are today significant proposals aimed at establishing mediation procedures, with reparative outcome, concerning the entire area of medical responsibility.
Translated title of the contribution[Autom. eng. transl.] Towards a recovered determination of medical liability in criminal matters? The role of consent in the light of Cass. on 21-1-2009, n. 2437
Original languageItalian
Pages (from-to)423-431
Number of pages9
JournalCRIMINALIA
Volume2009
Publication statusPublished - 2009

Keywords

  • consenso nell'attività medica
  • medicina "difensiva"
  • nozione di salute
  • responsabilità penale del medico

Fingerprint

Dive into the research topics of '[Autom. eng. transl.] Towards a recovered determination of medical liability in criminal matters? The role of consent in the light of Cass. on 21-1-2009, n. 2437'. Together they form a unique fingerprint.

Cite this