Responsabilità sanitaria e responsabilità disciplinare dopo la cd. riforma Gelli-Bianco

[Machine translation] Even in the face of an exponential increase in litigation for damages caused by medical error, the disciplinary liability of the health professional is rarely triggered, remaining “in the shadow” of the more age-old problem of liability, of the doctor and/or of the health facility, vis-à-vis the injured. According to the author, the centralization not of the responsibility for the default of the health worker, the individual perpetrator of the wrongful act, but of the activity carried out by and in the healthcare facility should be considered consistent with the full implementation of the insurance function of the employment contract: in the distribution of risk, the contract gives the employer the risk of inefficiency of the worker, the risks of the medical act, the costs for the defense of the structure in any civil action; the worker, for his part, in the face of the” security” of the relationship, would pay an insurance premium in terms of subordination and lower pay compared to an activity carried out under a professional employment regime. However, the contextual jurisprudential reconstruction of a doctor's large debt position vis-a-vis his employer remains, marked by “qualified diligence” with rather variable and sometimes unpredictable contours. In order then to objectify the general abstract criterion of the required diligence, the attempt referred to in the so-called law is inserted. Gelli-Bianco that formalizes, through guidelines and good care practices, the measure of expertise required of the healthcare profession. In the continuing search for balance, the legal system attempts to reach a meeting point between medicine and law, whose intrinsic limitations lie above all in the different declination of the “certainties” that each science is able to express: substantive, which govern or must govern the law, and “retrospectively” for medicine, often demonstrable only with the success of the prescribed treatment. In an attempt to bridge the profound difference between “procedural certainty”, pertaining to the field of jurisprudence and heritage unrelated to any medical-naturalistic statement, and “medical certainty”, an unprecedented system is inaugurated, with a publicistic imprint, at least in the phase of control, of scientific knowledge. But not only that. Law Gelli-Bianco seems to outline a regulatory subsystem in which disciplinary proceedings are supplanted by the judgment of revenge, which gradually acquires a contractual/sanctioning nature. Reference is made to the characters of the action but also to the quantification of the amount of the sentence which, pursuant to paragraph 5, is completely free from the damage actually caused to the public body, eliminating any compensatory value.