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La responsabilità civile dell’«esercente la professione sanitaria»

Carlo Masieri    Università degli Studi di Milano, Italia    

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abstract

During the last 15 years Italian Medical Malpractice Law has become something different from other sub-systems of Tort Law. For instance, the “Social Contact” doctrine led to an unexpected and overruling case law, making Medical Malpractice Law a sort of Contract Law-like field, with huge consequences on the burden of proof as well as on the timing due for the statute of limitations. Still, high amounts of damages are granted by domestic judges on behalf of patients. All these features, jointly considered, actually increased Medical Malpractice litigation rate and as a consequence the Italian insurance market is presently dealing with a deep crisis, while the costs for defensive medicine are becoming more and more burdensome for the Italian Public Health Service, namely the “Servizio Sanitario Nazionale”. To face these issues, the Italian legislator is trying to take advantage of its traditional tools, as a recent statutory law, namely the so called “Decreto Balduzzi”, can easily testify (section 3 of the law decree September, 13, 2012, n. 158, final text dated November, 8, 2012, n. 189). While Decreto Balduzzi refers to the use of clinical practice guidelines in order to assess medical negligence and limit the amount of damages, it seems to leave the “Social Contact” doctrine in order to return to Tort Law. Nevertheless, Italian Courts’ decisions still settle Medical Malpractice cases in contrasting ways. The aim of this paper is to try and offer a possible path for interpreting “Decreto Balduzzi”, starting from its literal meaning, with particular focus on its range of applicability and criterion for damages quantification.

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Copyright: © 2015 Carlo Masieri. This is an open-access work distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction is permitted, provided that the original author(s) and the copyright owner(s) are credited and that the original publication is cited, in accordance with accepted academic practice. The license allows for commercial use. No use, distribution or reproduction is permitted which does not comply with these terms.