The Italian Supreme Court Joint Sections set forth the interpretative underpinnings of the "Gelli-Bianco" law: varying degrees of guilt aimed at limiting medical liability, article 2236 c.c. makes a comeback.

Abstract

The article's author has sought to summarize the regulatory and legal evolution of accidental criminal liability of doctors starting from earliest positions up until the enactment of the Gelli-Bianco law. An in-depth analysis is laid out based on the Italian Supreme Court Joint Sections ruling n. 8770/2018 (so-called Mariotti decision). The author has also elaborated upon the notion of varying degrees of guilt, which was taken out of the law's wording, to be later reintroduced as a concept by judicial interpretation. It is worth noting that Article 3 of the Balduzzi decree, article 590 sexies of the Italian Criminal Code and the reference to article 2236 of the Civil Code reflect an awareness on the part of legislators that medical liability needs to be limited. Clearly, the approach based on lawfulness alone, which protects from liability physicians that have adhered to guidelines, has been dismissed, superseded by the notion of minor fault. Nonetheless, the new legislation, in the author's estimation, constitutes a standard particularly ill-suited to modern medical practice, which has a high degree of complexity. The author concludes that it might be worth considering a more balanced alternative: getting back to the notion of fault, considering minor fault relevant, rather than major fault.