The redefinition of criminal medical negligence facing defensive medicine: Laying the groundwork from a comparative perspective

Research output: Contribution to journalArticlepeer-review

3 Citations (Scopus)

Abstract

One of the possible political-criminal options, when facing the phenomenon of Defensive Medicine, consists in reducing the scope of criminal negligence as a criterion of imputation in the field of medical malpractice law, with the aim of combining, on the one hand, the principle of responsibility and, on the other hand, the implementation of better conditions for the protection of the fundamental rights involved. In this regard, the author analyses the reforms adopted by the Italian legislator in 2012 and 2017 and the “professional negligence” as provided by the Spanish Penal Code. The conclusions offer some suggestions and warnings inferable from the comparative perspective considered. In particular, the author argues some limits of the normative heterointegration of the duty of care by protocols and guidelines; he defends a distinction between “typical” (predetermined) standards of care and “atypical” duties of care (definable within the framework of a trial); and, on that basis, he proposes a criterion of “gross negligence” for the hypothesis of medical culpa in eligendo.

Original languageEnglish
Pages (from-to)858-903
Number of pages46
JournalPolitica Criminal
Volume13
Issue number26
DOIs
Publication statusPublished - 1 Dec 2018

Keywords

  • Art. 491 Chilean penal code
  • Comparative law
  • Defensive medicine
  • Gross negligence
  • Medical malpractice
  • Penal reform
  • Professional negligence

ASJC Scopus subject areas

  • Sociology and Political Science
  • Law

Fingerprint Dive into the research topics of 'The redefinition of criminal medical negligence facing defensive medicine: Laying the groundwork from a comparative perspective'. Together they form a unique fingerprint.

Cite this