Medical Malpractice as a Tort in the U.S., as a Crime in Italy: Factors, Causes, Paths and Outcomes
Journal Title: The Age of Human Rights Journal - Year 2019, Vol 12, Issue 1
Abstract
The aim of the paper is, firstly, to try to understand the reasons for the different approaches to medical malpractice in two legal systems taken as models: the U.S., where professional negligence is almost exclusively subject of tort law; Italy, where criminal law instruments are instead widely used. The different extent of criminal responsibility for negligence and omission seems connectable to different political and cultural models: individualistic liberalism, on the one hand, solidarist statism and communitarianism, on the other hand; in juridical terms, to the ideal contrast between the reactive State and the active State; to the different approach to the relationship between subject and body, dominical-individual versus collectivist-social; with a tendential "privatization" of the health-good, in the US model, and a "socialization" of the good-health itself, in the Italian model. Secondly, the paper tries, in a comparative perspective, to evaluate these different approaches, in terms of access to justice, paths and outcomes of the two models. The article attempts to highlight the strengths and the weaknesses of the contingent-fee system in the U.S. tort arena, and of the criminal justice system as "free legal aid" in Italy: a balanced solution should also allow victims hindered by the costs and the length of civil actions the possibility of using these latter form of protection, avoiding that criminal justice is exploited for compensatory purposes. Indeed, tort law more easily can meet compensatory claims, due to the lower probative standard required, the preponderance of evidence, rather than the beyond any reasonable doubt standard, required in criminal law. Also in terms of outcomes, the main problems arising in the two systems need to be tackled: the problem of few persons compensated, allowing a greater number of injured parties to access to justice and obtain fair compensation; the problem of symbolic criminal convictions (observed in the Italian experience), avoiding the automatic use of suspended penalties and monetary penalties as substitute of penalties weighing on professional practice and freedom, since these automatic mechanisms limit the preventive effectiveness of the criminal sanction and run the risk of creating discrimination on a census basis.
Authors and Affiliations
Andrea Di Landro
Keywords
Related Articles
- EP ID EP694651
- DOI 10.17561/tahrj.n12.2
- Views 120
- Downloads 0
Interdependence, indivisibility and the social rights of persons with disabilities in the law of Qatar
Based on the description of the situation of some social rights of persons with disability in Qatar, this article is aimed to highlight the need to address the protection of human rights from interdependence and indivisi...
Towards Reconstructing the Meaning of Inhuman Treatment or Punishment: a Human Capability Approach
The prohibition on “inhuman treatment” constitutes one of the central tenets of modern international human rights law. However, in the absence of any legislative definition of the term "inhuman", its interpretation becom...
Political Belonging and Fantasies of Inclusion. Romanians in London and Paris
This article analyses from a bottom-up perspective Romanians’ complex emotions surrounding their reasoning for applying for a French or British passport. It illustrates the extent to which interviewees’ fantasies of...
The Impact of the International Convention on the Rights of Persons with Disabilities on Qatari Domestic Legislation
The entry into force of the International Convention on the Rights of Persons with Disabilities means that State Parties shall adapt their legislation and regulation to the social model designed in the international...
Ethics and Robotics. A First Approach
Clearly, technical and scientific progress and moral progress do not necessarily go hand in hand. Therefore, this article encourages reflection on the new ethical challenges posed by such developments and, in particular,...