Swinging malpractice. Il pendolo della responsabilità medica

Medical malpractice has become in Italy a field of controversy between Courts and Legislature after the latter adopted a couple of statutes, in 2012 and 2017. Both of them in particular diverge from the consolidated approach of the judicature as to the nature of liability of surgeons and medical operators whose activity is carried out inside medical institutions as hospitals and clinics. Contrary to the judicial precedents of last twenty years, which affirmed the contractual nature of liability of these professionals, the statutory provisions qualify this one as tortious in order to alleviate the burden of damages arising from malpractice and contrast the so called defensive medicine. Liability concerning hospitals though keeps on being contractual. The consequence is a double regime generating problems of coordination, particularly in case of reimbursement requested by medical institutions to their operators whose malpractice is at the origin of liability towards the patients. In turn this subject has been complicated by a strange position of the Corte di Cassazione, which under the species of causation has exhumed the already buried distinction between obligations de moyen and obligations de résultat.