MEDICAL MALPRACTICE AS A TORT IN THE U.S., AS A CRIME IN ITALY: FACTORS, CAUSES, PATHS AND OUTCOMES

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.