Il grado della colpa nel diritto penale della medicina: le ragioni per una ‘riforma delle riforme’

Abstract

The present work examines the most critical interpretative issues on the subject of healthcare professional negligence. Starting from the supplementary role of Court decisions, the work analyses the current regulatory framework with some reflections de iure condendo. The results of the debate that has developed so far will lead to the acknowledgment of the inability of the criminal law of medicine - as arranged by recent reforms - to stem the phenomenon of defensive medicine, the result of recourse to the trial conceived as a sanction. Hence there is the need to rethink the categories of traditional criminal law, in order to recognize the guilt's degree as a selective criterion of the criminal (ir)relevance in a political-criminal function, derogatory from the classical commensurative one. This new criminal regulation based on the guilt's degree is at the dawn of an "unpublished" criminal law, and thus of a path towards the "reform of the reforms". The aforesaid reform should be able to interpret the 'light' guilt's degree into a sort of 'criminal shield ', with the intention of preventing the rush to the trial and of achieving the most rational balance between doctor’s free choices of action and the protection of the patients' right to health.