For the Italian Supreme Court, the Doctor Who Forcibly Removes Ova from a Woman for the Purpose of Unfair Profit Commits the Crime of Robbery
Italian Supreme Court, Sec. II, November 25, 2020, no. 37819, Antinori
The paper deals with the reformed article 348 of the Italian Criminal Code and its consequences on healthcare, usually affected by unlicensed practice more than other sectors. In particular, after assessing the main changes introduced by the so called ‘Lorenzin reform’, the paper focuses on cases of unauthorized practice in dentistry. Such offence, when committed by unlicensed dentists delivering their services through companies, may be even more harmful to clients and competitors, potentially calling for the application of corporate liability legislation (legislative decree 231/2001).
The “Mariotti” case constitutes a turning point in the use of criminal law to punish health professionals who have caused death or bodily harms by negligence. However, the status of criminalisation of medical negligence laid out by this decision is quite different from what could have been imagined before the two reforms adopted in the last few years, which aimed to reduce the relevance of criminal responsibility for medical malpractice. Starting from the decline of modern medicine and from the judicial over-exposure of practitioners, the essay critically reviews the key steps in the path of decriminalisation of medical error. At the end of the analysis, the author argues that the heritage of these reforms, despite their shortcomings, might be a new “legal culture” of prosecutions for medical negligence, rather than an actual decriminalisation of medical malpractice.
After some preliminary considerations on the new article 590-sexies of the Italian Criminal Code, this paper criticizes the judgment by the Joint Chambers of the Italian Supreme Court of Cassation for the “Mariotti” case on medical malpractice, highlighting how it conflicts with the limits of the interpretation in conformity with the Constitution.The last part of this article addresses the issue of the alternative interpretations that the Court could have chosen to ensure a fair balancing of the different interests at stake, without going beyond the limits of the interpretation of criminal law.
The paper focuses on the legal reforms on therapeutic freedom and self-determination of the patient. The laws 8 March 2017, n. 24 (so-called ‘Gelli-Bianco Law’) and 22 December 2017, n. 219 (on the informed consent) seem to allow a free choice of the medical professional about the therapy, following the Health Ministry guidelines and avoiding – under certain conditions – useless or disproportionate treatments. The Author reflects on the role played by the terminally ill patient in choosing the therapy, as well as the criminal law implications deriving from the interplay, and even the conflict, between self-determination and the autonomy of the medical professional in deciding the best treatment for the patient.
The paper focuses on relational negligence of medical malpractice, then defining the current requirements of its criminal relevance. The said requirements are clearly influenced by the general principle of reliance and by the complex provisions under art. 590-sexies, 2nd paragraph, of the Italian Criminal Code, to be applied in two main areas of relational negligence, in light of the duty to control, provided or not by an evidence-based rule of conduct. Some proposals are advanced in order to overcome the obstacle of not enough formally accepted guidelines. The notion of good clinical practice, to be interpreted extensively, could be used as a genus including guidelines themselves. Also art. 2236 of the Italian Civil Code could rationally limit criminal liability, at the boundaries of art. 590-sexies, 2nd paragraph, of the Italian Criminal Code.
The recently introduced article 590-sexies of the Italial Criminal Code, provides for that a medical doctor cannot be punished for injuries or manslaughter deriving from his errors if he/she complied with the guidelines and best healthcare practices. The paper aims to use healthcare best practices as guidelines for the judge, who must exclude any causal relationship between the doctor’s conduct and the adverse outcome when the best practices for the given situation were correctly identified and applied. In such cases the defendant must be acquitted because the crime did not occur (i.e. the broadest among the acquittal reasons) rather than because the misconduct is not a crime, so benefitting from further legal effects (aside from the criminal proceedings) under article 652 c.p.p., basically preventing the damaged party to file a civil suit after the criminal trial.
The Criminal Liability of the Healthcare Professionals and the New Law No. 24/2017 (the So Called Gelli-Bianco Law)
The Law No. 24 of 2017 (the so called Gelli-Bianco Law), which has been welcomed with great enthusiasm by the medical profession, reshapes the criminal negligence in the healthcare sector, after less than five years from the Balduzzi Law. The new appearance of the medical liability for fault is based on a detailed regulation of the guidelines, within which it is possible to identify the recommendations which are generally binding for the healthcare professionals; at the same time a new Article, concerning the criminal liability for death or personal injury in the healthcare sector, has been inserted in the Penal Code (Art. 590-sexies), characterized by the cancellation of the gradation of the fault and by the limitation of the non-punishability only to the unskilful conducts, when appropriate guidelines are observed.
The very recent “Gelli-Bianco” Act, which amends the law on medical negligence, has raised several critical issues. In particular: the reference to the ambiguous parameter of medical guidelines and the removal of gross negligence as a basis for liability for medical malpractice.