Criminal law as a response to medical malpractice: pluses and minuses--comparing Italian and U.S. experiences

The paper is divided into three parts. The first part sets out the comparative differences between the tort of malpractice in common law and the criminal negligence in civil law: while the common law takes for mens rea only the "gross" negligence, and rarely medical negligence, other law systems instead (and particularly Italian law) criminalize also ordinary negligence, frequently in medical malpractice cases. The second part of the paper addresses the pluses of using criminal law as response to medical malpractice: inadequate medical self-policing and "repeat offenders" problems are analysed, in the perspective of the patient, of the doctor, of the insurance company, and of the community. The third part addresses the minuses of the criminal law as response: medical "shame and blame" mentality, criminal stigma and culture of fear are disincentives to incident reporting and to system analysis (the most important means of prevention); "defensive medicine" and "courts-abiding medicine" are managed not yet in the patient's exclusive interest, but in the egoistic/utilitarian aim to avoid denunciations; finally, the uncertainty of the medicine, the accusatory system and the proof "beyond a reasonable doubt" seem hardly compatible with each other.