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MEDICAL MALPRACTICE AS A TORT IN THE U.S., AS A 

CRIME IN ITALY: FACTORS, CAUSES, PATHS AND OUTCOMES 

 

ANDREA DI LANDRO1 
 
 
 
Abstract: The aim of the paper is, firstly, to try to understand the reasons for the different approaches to 
medical malpractice in two legal systems taken as models: the U.S., where professional negligence is almost 
exclusively subject of tort law; Italy, where criminal law instruments are instead widely used. The different 
extent of criminal responsibility for negligence and omission seems connectable to different political and 
cultural models: individualistic liberalism, on the one hand, solidarist statism and communitarianism, on 
the other hand; in juridical terms, to the ideal contrast between the reactive State and the active State; to the 
different approach to the relationship between subject and body, dominical-individual versus collectivist-
social; with a tendential "privatization" of the health-good, in the US model, and a "socialization" of the 
good-health itself, in the Italian model. Secondly, the paper tries, in a comparative perspective, to evaluate 
these different approaches, in terms of access to justice, paths and outcomes of the two models. The article 
attempts to highlight the strengths and the weaknesses of the contingent-fee system in the U.S. tort arena, 
and of the criminal justice system as "free legal aid" in Italy: a balanced solution should also allow victims 
hindered by the costs and the length of civil actions the possibility of using these latter form of protection, 
avoiding that criminal justice is exploited for compensatory purposes. Indeed, tort law more easily can meet 
compensatory claims, due to the lower probative standard required, the preponderance of evidence, rather 
than the beyond any reasonable doubt standard, required in criminal law. Also in terms of outcomes, the 
main problems arising in the two systems need to be tackled: the problem of few persons compensated, 
allowing a greater number of injured parties to access to justice and obtain fair compensation; the problem 
of symbolic criminal convictions (observed in the Italian experience), avoiding the automatic use of 
suspended penalties and monetary penalties as substitute of penalties weighing on professional practice and 
freedom, since these automatic mechanisms limit the preventive effectiveness of the criminal sanction and 
run the risk of creating discrimination on a census basis. 
 
Keywords: medical malpractice, negligence, omission, access to justice, standard of proof. 
 
SUMMARY: I. Introduction. Medical malpractice in U.S. law. No criminal responsibility for personal 
injury negligence or involuntary manslaughter due to minor (not gross) negligence. From practical 
problems to political-criminal problems… II. (continued)…the distribution of omissive and negligent 
crimes, between individualistic liberalism, solidaristic statism and communitarianism; between the reactive 
State and the active State; between the individual model of property and the collective/communitarian 
model of inalienability; between “privatized” and “socialised” healthcare. III. “Access to justice”, paths 
and outcomes: contingent fee in tort area and criminal justice as “free legal aid”; “preponderance of 
evidence” and “beyond reasonable doubt”; compensation for a few people and symbolic criminal 
convictions. 
 
 
 

                                                           
1  Associate Professor of Criminal Law, University of Central Sicily “Kore”, Italy 
(andreadilandro@gmail.com). 



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I. Introduction.  Medical malpractice in U.S. law. No criminal responsibility 
for personal injury negligence or involuntary manslaughter due to minor (not gross) 
negligence. From practical problems to political-criminal problems… 

 
In Anglo-American law, medical conducts with inauspicious outcomes are subject 

matter mainly in the arena of civil law (malpractice tort law). 
 
In the arena of negligent liability, an important comparative difference is that in 

North-American criminal law, battery is generally punished only if commited with intent 
(so-called specific intent), and only exceptionally, in some jurisdictions, if due to 
negligence2. 

 
On the contrary, in Italian criminal law we find the crime of personal injury 

negligence (punishable with imprisonment of up to three months, or with a fine up to 309 
euro: articles 590 - 590 sexies of the Italian criminal code), in addition to the crime of 
negligent homicide (punishable ex officio, as is standard in the Italian procedural system, 
with imprisonment from six months to five years: art. 589 - 590 sexies of the Italian 
criminal code). 

 
In common law, negligence has historically been approached autonomously with 

respect to different areas of the legal system. In criminal proceedings only gross 
negligence is relevant; in civil proceedings minor negligence is evaluated, in other words, 
unintentional fault. In fact, normally, negligence (also called carelessness) by health 
professionals and the related causal problems, especially about the omissive actus reus, 
are subject matter of civil law3. 

 
Therefore, in the U.S., criminal responsibility of the doctor is traditionally more 

limited than civil responsibility. 
 
In the context of criminal law, the first function of mental states (mens rea), with 

particular reference to negligence, is indeed to distinguish criminal and non-criminal 
conduct4. 

 
In U.S. law, unlike English law, great efforts have been undertaken to define gross 

negligence (criminal negligence), especially in the Model Penal Code (M.P.C.), Sec. § 
2.02, lett. d): «A person acts negligently with respect to the material element of a crime 
when he/she should be aware of the substantial and unjustified risk related to his / her 
behavior. The risk must be of such a nature and entity that its failure to perceive by the 
agent subject, given the nature and purpose of his conduct, as well as the circumstances 

                                                           
2 V. Saunders v. State, 208 Tennessee 347, 345 S.W. 2d 899 (Tenn.1961), in LOEWY, Criminal Law, 
Eagan, Minnesota, 2003, 67. 
3 On the relationship between criminal and civil negligence, in UK law, see HERRING & PALSER, The 
Duty of Care in Gross Negligence Manslaughter, in Crim. L. Rev., 2007, p. 24. 
4 BLOCH-McMUNIGAL, Criminal Law: A Contemporary Approach. Cases, Statutes, and Problems, New 
York, 2005, p. 210. 



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known to him, involves a serious deviation from the standards of diligence that a 
reasonable person would observe in the same circumstances». 

 
It must be said that this autonomous, complex definition of criminal negligence, 

principally based on two elements "Substantial and unjustified risk of which the subject 
should be aware" and the "lack of perception that implies a serious deviation from the 
standards of diligence" ("failure to perceive” that “involves a serious deviation from the 
standard of care"), does not receive unanimous approval by the commentators 5 . In 
criminal proceedings, the fact that mental state is essentially a question of degree usually 
causes problems, from both a theoretical and a practical point of view6. 

 
In various U.S. jurisdictions, in order to put into effect and apply the Model Penal 

Code in case law, several epithets are used to describe the amount of negligence necessary 
to integrate negligent homicide. The most typical are: «criminal negligence», «gross 
negligence» and «culpable negligence». "About the only certainty of meaning one can 
ascribe to these epiteths - to quote a current U.S. manual7 - is that they require more than 
ordinary negligence, i. e., more than would be required in a civil case. Undesirable as this 
lack of certainty may be, it is probably unavoidable. Nobody has yet devised a formula 
which more precisely describes the degree of negligence necessary for involuntary 
manslaughter".   

 
To explain the “something extra” necessary for criminal negligence and to avoid 

a reprehensible vicious circle of evaluation tests, focus is usually placed on the «moral 
defect» that «can properly be imputed to instances where the defendant acts out of 
insensitivity to the interests of other people, and not merely out of an intellectual failure 
to grasp them»8. 

 
A notion of criminal negligence impregnated, therefore, by subjectivity, that 

contains a basis of morality9. It could also be defined as an intuitive conception of the 
mental state, that must be "felt" (by the jury), rather than analyzed. 

 
To the Italian doctrine, which has a long tradition of commitment to the myth-

value of legality, this idea might seem contrary to the defense of civil rights: yet in the 
U.S. this is considered the best indication upon which to trace the boundary of criminal 
relevance, of negligence and other notions. 

 

                                                           
5 In a critical sense, see FLETCHER, Dogmas of the Model Penal Code, in 2 Buffalo Criminal Law Review, 
3 (1998); ID, Basic Concepts of Criminal Law, Oxford, 1997, chap. 8; SIMONS, Dimensions of Negligence 
in Criminal and Tort Law, 3 Theoretical Inq. L., 305 (2002); EDGAR, Mens Rea, in Encyclopedia of Crime 
and Justice, 1037 (1983): "The terms that positively indicate the mens rea, basic, are fictions. The law deals 
with probative problems related to the mental states through the use of presumptions". 
6BLOCH-McMUNIGAL, paper cited, p. 211. 
7 LOEWY, Criminal Law, MN, 2003, 39. 
8 Comment to Model Penal Code, § 2.02, Negligence. 
9 HUSAK & SINGER, Of Innocence and Innocents: The Supreme Court and Mens Rea Since Herbert 
Packer, 2 Buffalo Criminal Law Review, 860 (1999). 



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In a sense it is the “price” that the Anglo-Saxon system pays for a concept of 
negligence exclusive to the criminal system. A concept lacking in certain analytical 
parameters for establishing the notion, and above all the civil/penal shift, the “something 
extra” of criminal negligence appears to be resolved intuitively, "self-evident" to the 
criminal system itself. A system that definitively entrusts laymen to evaluate the criminal 
relevance of negligence. 

 
What is the approach of U.S. law regarding civil negligence? 
 
In the Second Reformulation of US Civil Law (Restatement of Torts, Second), the 

basic structure of civil negligence includes minor negligence. Civil negligence is defined 
in plainer terms than criminal negligence: "Negligence is conduct that falls below the 
standard established by law for the protection of others against unreasonable risk of harm. 
It does not include reckless conduct that disregards the interests of others". 

 
It is interesting to note how the most recurring question in U.S. law manuals is, in 

inverted terms, speculation on a question that is increasingly widespread among Italian 
criminal law scholars. Italian scholars focus on the question of legitimacy and/or 
opportunity to adjust restrictive terms regarding the concept of criminal negligence, to 
eventually cover cases of gross negligence (whether conscious or not). American criminal 
law scholars, on the contrary, start from the limit of grossness (the already existent de 
iure), consider whether it is desirable that in different areas of substantive law the concept 
of mental states becomes uniform, thus arriving to align criminal and civil negligence10. 

 
II. (continued) ... the distribution of omissive and negligent crimes, between 

individualistic liberalism, solidaristic statism and communitarianism; between the 
reactive State and the active State; between the individual model of property and 
the collective/communitarian  model of inalienability; between "privatized" and 
"socialised" healthcare. 

 
The role of criminal law in Italy cannot be assessed outside of the overall legal, 

political and cultural context. 
 
To quote the Spanish scholar Silva Sanchez «The pretension to harmonize a 

maximum State and a minimum criminal law constitutes a contradiction in terms. For a 
single reason: insecurity about the perception of the services [...] directly or indirectly 
coming from the State leads to the exploitation of criminal law to guarantee (at least so it 
is claimed) them»11. 

 
From a political and cultural point of view, the "maximum State" (to resume the 

expression of Silva Sanchez) seems connected, in Italy (and perhaps in continental Europe 
in general), to the greater trust traditionally placed in regulatory interventions of the State. 
The idea is that "institutional public regulation is superior in allocating optimal well-being 
                                                           
10 Cfr. BLOCH-McMUNIGAL, paper cit., 318. 
11 SILVA SANCHEZ, La expansión del derecho penal Aspectos de la política criminal en las sociedades 
postindustriales, Madrid, 2011, in particular chap. 4. 



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when compared to the "market". In other words, the developement of political-normative 
regulations produces superior desirable results on well-being than the commitment of the 
same well-being to uncontrolled forces within civil society"12. 

 
Given these premises, in States (like Italy) where criminal law traditionally carries 

out such a role, an invitation to prudence seems due. As when it is suggested to decisivly 
"trim" many branches off a criminal law system that is perceived, almost presumptively, 
as suffocating and primitive. The objective is to "transplant" concepts, models, ideas and 
systematic constructions applied by another legal system actualised in a different 
country13. 

 
In other words, a cure worse than the disease, if the much lauded 

elimination/reduction of some parts of the criminal "penal apparatus", despite its flaws, 
are not compensated by the introduction of adequate forms of substitutive control. 

 
The principle of criminal law as a last resort (extrema ratio), which certainly 

expresses a noble request, can simultaneously represent a "magic bullet" that easily lends 
itself to indistinct and uncontrolled use. A principle whose insignia seems obvious to 
recognise, but that still includes too many unknown "variables". Primarily "the difficulty 
or the impossibility of  precisely defining the need for criminal sanctions and the 
sufficiency of non-criminal alternatives, with respective degrees of effectiveness, given 
the infeasibility of previous tests, shortcomings, discords and the doubtful value of 
unestimatable empirical findings"14. 

 
Beyond the hypercritical attempts to "demolish without reconstructing" and the 

preconceived defense of existing laws, it must be acknowledged – with F. Mantovani - 
that the main challenge of current criminal law seems to be its "crisis of solitude". In the 
face of various social problems,  criminal law is often left not as the last (extrema) resort, 
but as the sole resort (ratio) in an attempt to "keep the peace"15. 

 
This also seems to be the case of medical responsibility. In the abscence of valid 

and alternative systems of control and socio-cultural counterforces, is it really feasible or 
desirable that criminal law recedes from a "hard line" defense of life, well-being and 
personal safety?16 

                                                           
12 SGUBBI, Il reato come rischio sociale, Bologna, 1990, 17.  
13 To use an engineering metaphor, a "cogwheel" that spins in a given apparatus of rules could turne out to 
be not as functional in another one.  
14 MANTOVANI, La "perenne crisi" e la "perenne vitalità" della pena. E  la "crisi di solitudine" del diritto 
penale, in Studi in onore di Giorgio Marinucci, Milan, 2006, 1181. The author speaks also of "crisis of the 
crisis", in the sense that "the crisis of the criminal law is accompanied by the crisis of the proposed 
alternative models to the criminal law itself". 
15 ID, paper cit., 1202. 
16 As MANTOVANI teaches (paper cit.), the modern history of the criminal law consists precisely in a 
(never outdated) dialectic between legitimization, de-legitimization and re-legitimation: attempt to remove 
such dialectic contrapositions, from this point of view, represents only a sterile "intellectualism", a 
"reductionism" that smacks of an idealized "illuminism out of time and space". Even FIANDACA-MUSCO 
agree that <<the models of legitimation developed by scholars are influenced [...] by an "idealistic" 



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It seems to confirm the need for a comparison between European and U.S. law, 
not only from a synchronic perspective but also from a diachronic perspective: i.e. taking 
into account not only the current state of the legal systems, but also their historical 
evolution and, last but not least, the different factors that influence the current systemic 
realities, along with their prospects for future evolution. 

 
Once models, rules, languages and different legal forms are placed in the proper 

historical-political and cultural dimension, it will perhaps be possible to identify the ideas 
and inspirations that can be exported from one system to another, as well as the pitfalls 
to be avoided. 

 
While continuing the reconstruction of factors around which the various 

regulatory systems rotate, it is possible to note how, from a cultural point of view, in 
Anglo-Saxon countries the dominant socio-political tradition is liberalism. More than a 
well-defined school of thought, liberalism is an intellectual and moral attitude whose 
"founding fathers" are the English philosophers Bentham and J.S. Mill (the latter a student 
of the first). Liberalism strongly emphasizes the value of individual freedom and only 
recognizes to the State the task of refraining from interventions that sacrifice or inhibit 
this freedom 17 . To the point that, according to one of the most recent and extreme 
formulations of liberalism, the only morally legitimate form of a State, as not to be 
detrimental to individual rights, would be the minimum State. A State which radically 
limits its own interference into the sphere of the individual (think of Nozick, for example, 
although the liberal school obviously knows more moderate positions such as Rawls or 
Berlin). 

 
In the U.S., liberalism is typically associated with individualism: a term 

introduced by Tocqueville to indicate, in general, an attitude that promotes the individual 
with respect to the social whole18. 
                                                           
approach, being often based on points of view and concerns that are quite foreign or indifferent to ordinary 
people. And there is risk that this split is accentuated precisely in an historical contingency such as the one 
we are experiencing "(Perdita di legittimazione del diritto penale?, in Riv. it. dir. proc. pen., 1994, 25). 
17  MATTEUCCI, item Liberalismo, in Dizionario di politica, directed by Bobbio-Matteucci-Paquino, 
Turin, 1990, 566. From the field of the production and the exchange to that of law, the fundamental principle 
with which the Anglo-American reflections still today confront themselves, also in terms of space 
attributable to the penalty, is that, classic, of self-protection, formulated by Mill in his most famous work, 
On Liberty (1859): for a reconstruction of the Anglo-American socio-philosophical and criminal doctrine, 
in its focus on the concept of "harm to others", see FORTI, Per una discussione sui limiti morali del diritto 
penale, tra visioni "liberali" e paternalismi giuridici, in Studi in onore di Giorgio Marinucci,  eds. Dolcini 
and Paliero, vol. I, Milan, 2006, 308; FRANCOLINI, L'harm principle nel diritto angloamericano nella 
concezione di Joel Feinberg, in Riv. it. dir. proc. pen., 2008, 276; as well as FIANDACA-FRANCOLINI 
(eds.), Sulla legittimazione del diritto penale. Culture continentale e  anglo-americana a confronto, Turin, 
2008. 
18 The term individualism, if today it is used in the socio-philosophical debate as a “neutral" term from an 
evaluative point of view, represents a position that, especially at the political level, in Europe has been (and 
still continues to be) commonly criticized as "self-interested, anti-social, anti-solidaristic»: see FABBRINI, 
L'America e i suoi critici. Vizi e virtù dell'iperpotenza democratica, Bologna, 2005, 135. In general 
(according to FABBRINI, paper cit., 251; BENCIVENGA, Le due americhe. Perchè amiamo e perché 
detestiamo gli Usa, Milan, 2006, 25), American liberalism remains basically a method, which presupposes 
the recognition of the interests of all classes, sees the market as the privileged location of the individual 



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Regarding individualism, the comparative law scholar Damaška coined the notion 
of the reactive State, whose "instruments must liberate the spontaneous forces of social 
self-management. The State knows no notions of interest distinct from social and 
individual (private) interests.  There are no problems typical to the State, only social and 
individual problems"19. According to Damaška, it is natural that, in the Anglo-American 
system, where individual preferences are sovereign, the preferred normative instruments 
are various types of agreements, contracts and pacts [...] Therefore a wide range of 
suspendable rules characterizes the legal culture of the Reactive State: absolute orders 
and prohibitions are anomalies. [...] the law facilitates and supports the self-regulation of 
the members of the civil society by creating "negotiating tools" for conventions between 
the citizens"20. There is clear reference to the "centrality of the contractual method". 

 
In the active State, clearly defined as opposite to the reactive State, we see that 

«the dominant image of the law, absolutely distant from contractual notions, is that of a 
provisional State [...] Unlike the law of the reactive State, whose effort it is to define 
forms that allow the free pursuit of chosen objectives, the active law is imperative, 
sometimes even authoritarian: it tells the citizens what to do and how to behave»21. 

 
Among the duties of the citizen, solidarity in particular which is traditionally 

relegated to a moral duty in other legal systems (so-called Good Samaritan Law), soars 
in Italy as a principle representing the Republican Constitution. That is, alongside the 
recognition of fundamental human rights it is explicitly requested that citizens assume 
the "fulfillment of mandatory duties of political, economic and social solidarity" (Art. 2 
of the Constitution). 

 
In Italy, criminal law appoints itself as the primary mediator between the 

individual moment – the guarantee of personal freedom – and the social moment – the 
guarantee of substantial equality and / or solidarity.  

 
Criminal law, as an instrument used as a liberal basis for the protection of 

inviolable rights and freedoms, therefore also becomes a social instrument for the 

                                                           
freedom, and the State as a simple "guarantor" (and competition as a democratic factor preventing the 
accumulation of power). In the old Continent, instead, for "historical" or "geographical" reasons (closed 
space and limited resources), liberal thought easily transforms into ideology, favorable only to the dominant 
social classes. Hence, the need to contrast liberal thought with a strong "dialectic" element, such as the 
"collectivistic" (or corporatist, or organicist) idea: the market thus becomes not only "guaranteed", or 
"regulated" by the State, but "socialised" or "statalized"; and the competition between values and interests, 
viewed with suspicion, in continental Europe makes way for the hierarchical definition of that values and 
interests. In short: in Europe a society that is generally less dynamic is born, yet more egalitarian, a more 
participated but also more paternalistic democracy: the so called social State (subject to the rule of law), or 
solidaristic State (which in Italy finds its consecration in Art. 2, subsection 2, Constitution). In European 
political thought, in any case, the limits of American liberal individualism are highlighted, from left wing 
movement in the name of social solidarity, from right wing movement in the name of the organic State. 
19 DAMAŠKA, The Faces of Justice and State Authority, New Haven, 1986, ed. in Italy by il Mulino, pag. 
136. 
20 ID, paper cit., 139. 
21 ID., paper cit., 149 



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protection of collective interests and the implementation of the objectives of the 
solidaristic State22.  

 
In light of the ever-increasing tasks attributed to the State, law is oriented not only 

in a prohibitive but also promotional sense. Particularly in criminal law, it is not only 
repressive (of prohibitions), but also constrictive (of commands). 

 
It is within this broader political and cultural perspective that the traditionally 

larger quantitative extension of omissive and negligent crimes in continental Europe 
should be framed.  

 
To quote the well-known American scholar Coffee: "In general, civil law sets a 

price, while criminal law prohibits"23.  
 
If everything has a price, everything can become property of the most powerful, 

as Roxin teaches, warning against the growing temptation to favor a "privatistic and 
autonomous composition of the conflict". "Faced with the withdrawal of the State from 
the area of injury of significant assets - the author writes clearly- there is indeed risk that 
not the right but the stronger wins, and that legal peace is threatened more by the play of 
opposed influences, than by the crime itself"24. 

 
At this point, a doubt may arise: Is the U.S. system, in creating a mostly civil 

protection regarding negligent offences, therefore less devoted to the fundamental values 
of life and personal safety? How to interpret the differences from the point of view of 
comparative law? 

 
In reality, with regards to the value of life and personal safety, civil protection 

does not necessarily mean less protection. It primarily means a different type of 

                                                           
22 About criminal law of  freedom, see the model set by MANTOVANI F., Diritto penale. Parte Generale, 
Padua, 1992, 21;  compare with FORTI, paper cit., 331: «more or less latently and consciously, this branch 
of the system (due to the human bearing of its coercive means) expresses a certain "communitarian" vision, 
inasmuch as it endorses a conception of the person, however disguised under a patina of values’ neutrality 
and liberal (indeed) self-restraint. As a matter of fact, punishment is something that evokes the whole, the 
totality, even of those to whom it is inflicted. A totality that arises from its complexity as social institution". 
V. DAMAŠKA, paper cit., 158, 162: "Many Europeans, looking at England and America through the prism 
of their experience, were surprised by the relatively modest function performed by the State in the 
management of social affairs. While the legislators of the Continent were continually expanding the tasks 
of the State [...] it seemed that in England and America, still recently, they relied on a much more important 
measure, on the private or "voluntary" action for the satisfaction of social needs. The foreigners were 
surprised by the functioning of this "minimalist Statism", and proposed a series of theories to explain the 
mystery. A theory that has gained widespread acceptance attributes the relatively minor importance of the 
State in the Anglo-Saxon countries to the claimed better success of the capitalist market in these countries; 
the more pervasive and effective the mechanism of the market, it is said, the lower the need for direct 
intervention by the State; power can be exercised above all in the economic-social sphere, and the social 
apparatus can often be circumvented". 
23  COFFEE, Does “Unlawful” Mean “Criminal”?: Reflections on the Disappearing Tort/Crime 
Distinction in American Law, 71 B.U.L. Rev. 194 (1991). 
24 ROXIN, Risarcimento del danno e fini della pena, in Riv. it. dir. proc. pen., 1987, 12.  



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protection, which can still be "balanced", no less effective and / or satisfactory than a 
criminal one. As a matter of fact, protecting assets in different areas of civil law means 
putting them under the spotlight and enhancing different characteristics of the assets 
themselves. Considered on a case by case basis with ever increasing importance and 
deservance of protection, allowing precedence over other charateristics. Regarding life, 
for example, it can mean protecting it as an economic entity, rather than only recognizing 
its legal-ethical-social value, and it is not given that the first form of protection necessarily 
produces a lower efficacy than the second. 

 
For a correct contextualization of technical legal specificities, it is necessary to 

keep in mind the different approach to the subject-body relationship held in the U.S.A. 
and in European law and culture. 

 
In the U.S.A., the subject-body relationship appears, mainly, to fall under a 

typically individual and dominical logic (the so-called property model25), proved by the 
extension to different parts of the body (organs and tissues) of negotiating schemes aimed 
to allow its circulation for payment (eg for the location of gametes, or the disposition of 
blood)26. 

 
The option for criminal protection, in a country such as Italy, must be 

contextualised within the broader cultural and legal framework of a subject-body 
relationship different from that characterizing the U.S. experience. Continuing the 
comparison, it can be said that, not only in Italy, but also in other continental European 
countries, the technique or model of protection mainly followed is that of inalienability 
(unavailability). 

 
Personal assets, described as legal objects in Italian law, and in particular in the 

Italian criminal code, seem to be characterized by an important role assumed in a social 
dimension. 

 
A dimension that is initially connected to the collectivistic-organistic 

utilitarianism, which in the framework of the authoritarian State (1930) saw human 
beings as an entity exploitable for public interests (and human life also as a colletive 
interest 27).  A dimension later connected to constitutional personalism, which in the 

                                                           
25 About the rules of responsibility and ownership, which corresponds to a medium-low State intervention, 
among the first fundamental contributions of economic analysis of law see CALABRESI-MELAMED, 
Property Rules, Liability Rules, and Inalienability. One View From the Cathedral, 85 Harvard Law Rev. 
1089 (1972). More recently, RAO, Property, Privacy and the Human Body, 80 B.U.L. Rew. 359 (2000); 
RODOTÀ, La vita e le regole. Tra diritto e non diritto, Milan, 2006, 73 ss.; ID, Ipotesi sul corpo 
“giuridificato”, in Tecnologie e diritti, Bologna, 1995, 180; similar setting in RESTA - ZENO 
ZENCOVICH, Informazione, consenso e responsabilità nei trapianti da vivente: prospettive nazionali e 
comunitarie,  in Riv. it. med. leg., 2003, 969. 
26 At a theoretical level, an authoritative support for such construction certainly comes from the school of 
"economic analysis of law": see RODOTÀ, last paper cited, p. 196. 
27 Not only in Italy, but also in other continental European countries, the technique or model of protection 
of life and personal safety mainly followed is the inalienability model, historically imposed in accordance 
with the policy objectives of an authoritarian State (code Rocco, 1930), where the individual interests were 



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context of the social State of law (1948) promotes instead the development / improvement 
of the social system, substantial equality (Article 3, paragraph II, Cost.), and freedom 
itself (now interpreted as personal, or positive freedom), through the assumption of new 
and broader tasks  assigned to the State, as well as in the criminal field. 

 
The extension to omissive and negligent crimes certainly falls cleanly into this 

new and broader perspective of protection of the human person. 
 
The contemporary historical-political framework favors the extension of concepts 

of omission and negligence (even medical) that are criminally relevant into the synergy 
realized between: a] intervention of the welfare State in ever wider spheres of a citizens 
life (from health care to work relations, etc.); b] increasing technological progress and 
mechanization: the increased potential for harm in social life is faced with the creation of 
an ever-increasing number of precautionary rules. 

 
This development is incessant (of "techniques", of social function, of the State, of 

criminal law) and characterizes the Italian experience throughout the twentieth century. 
Specifically in the field of health, this development arrives under the banner of 
"socialization" that promotes good-health as fundamental not only to individual but also 
to so collective interests (Art. 32 of the Constitution). 

 
This c.d. socialization of interests (typical of the Italian experience 28 ) with 

reference to health, offers a further possible key to understanding the different approach 
to medical responsibility seen in Italy, compared to the U.S.. 

 
While for a prevalently privatized healthcare system, like the U.S. system, it is 

natural to adapt mechanisms that are purely geared toward civil protection. For a coutry 
like Italy, where we find a greater state intervention regarding the protection of health, 
                                                           
rigidly dependent on collective ones (so-called collectivization of the interests). Criminal protection 
appeared then as the most suitable to defend assets, such as life and the personal safety, considered not of 
exclusive individual relevance, but mainly related to the superior State interest. 
To go back even further, already at the dawn of the distinction between voluntary and involuntary homicide 
 (as clarified in Roman criminal law), manslaughter perpetrated without occidendi animus, although not 
always sanctioned (in the royal and decemviral laws) with capital punishment, like voluntary killing 
involved the obligation of an expiatory sacrifice, to be carried out in public assembly: the death of a citizen 
(free, of course) was considered to involve anyway the interest of the res publica, upsetting “gods’ peace” 
(pax deorum): v. SANTALUCIA, item Omicidio (dir. rom.), in Enc. dir., XXIX, Milan, 1969, 885. 
Purified of religious encrustations, the justifying nucleus of the thesis that killing offends a collective good, 
before an individual one, ends up clearly outlined in the words of one major exponent of the Positive School, 
E. Ferri. "Not only the individual, but also human society has a supreme goal to be reached, for which its 
existence is therefore necessary, and as this results precisely from the existence of each member, so then 
Society has the right that, preserving his own, they preserve their existence ": see FERRI, L'omicidio-
suicidio, Turin, 1925, 488. In the same sense,  NUVOLONE, Diritto penale. I delitti contro il patrimonio 
e contro la persona, Milan, 1964, 207; GRANATA, L'omicidio nel diritto penale, Rome, 1960, 12; 
VANNINI, Delitti contro la vita, Milan, 1958, 5. For the latter author, the good of life from the subjective 
point of view turns into a dual interest: individual, as supreme good of every human being, and ethical-
political, "as demographic interest, as a condition of life and development of the social aggregate, as 
condition of moral and material force of a politically organized people". 
28 SGUBBI, paper cited, 34. 



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interpreted as a public good, it is instead reasonably accompanied by a growing recourse 
to criminal law. 

 
The fact remains that, from a "functional" point of view, the two legal experiences 

have evolved in parallel. In both we indeed find «the lower courts and even more the 
Supreme Court imparted to the "living law" on the issue of medical responsibility an 
evolutionary movement in successive phases progressively shifting to protect the rights 
of the patient, and simultaneously less protection of the rights of the physicians»29. This 
trend favors the rights of the patient (although not immune from periodic reexamination), 
common to the two systems and developed throughout the twentieth century according to 
the particular characteristics and "systematic preferences". 

 
When the evolution of malpractice is approached from a general viewpoint, in a 

broad diachronic perspective, the following parallelism seems to be established: A trend 
for "privatization" in American healthcare is matched by a revolution in rights, in favor 
of the patient, carried out in the field of tort law; while a prevalent "socialization" of 
Italian healthcare is accompanied by a parallel prevalent escalation of criminal 
responsibility. 

 
In order to identify possible factors that could explain why in the U.S. negligence 

traditionally plays a greater role in the field of torts (civil responsibility) rather than in the 
criminal field, it is useful to reflect on the birth and development of negligence lawsuits 
in American law. 

 
Already in the mid-nineteenth century – according to Friedman's reconstruction – 

the tort of negligence begins to impose itself on other civil lawsuits and actions30. 
 
The scholars who analyzed the origins, development and functions of the tort 

system (legal form practically non-existent before the nineteenth century) have found 
that, contrary to its more recent evolution (which makes it the emblem of the individual 
rights movement against the oppression of “stronger powers”), this institution initially 
intended to encourage, or at least not hinder, the growth of the young business world31. 

 
Civil law, more dynamic and evolved than penal law, appeared the most flexible 

instrument to accompany – while avoiding rigidities and overly severe disciplines – the 
development of a nation which appeared on the world stage making economic freedom 

                                                           
29FIORI, Medicina legale della responsabilità medica, Milan, 1999, 237.  
30 FRIEDMAN, History of American Law, 1985, edited in Italy by Giuffrè, pag. 301: «The real explosion 
of the tort law and negligence, in particular, must be traced back to the industrial revolution, the era of 
engines and the machines. Indeed, this field of law mainly deals with personal injuries. In a pre-industrial 
society there are few cases of personal injury, except as a result of violence or beatings». On the explosion 
of (civil) liability in the American law during the twentieth century, see also ID., American Law in the 20th 
Century, New Haven - London, 2002, chap. II. 
31 FRIEDMAN, History, paper cit.., 475 following. 



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its strength and strong point. Many institutions and civil concepts were therefore born, 
and initially used "for use and consumption" by business and companies32. 

 
Only at the beginning of the twentieth century did tort law, which until then had 

tenaciously defended the economic interests of the productive classes for a sort of 
"heterogenesis of the ends”, begin to undergo more and more consistent pushes in the 
opposite direction: The direction of protecting those who had become "victims" of 
progress. 

 
Innovations, such as the doctrine of the res ipsa loquitur33, the extension of the 

notion of responsibility and the increase of damages payable to the plaintiff, developed 
in the 70s of the last century, entered the malpractice area and began to hurt the interests 
of social groups traditionally considered "protected", such as physicians, dentists, nurses 
and hospitals in general. The foundations were then laid for the explosion of responsibility 
for which nowadays a court summons represents an almost inevitable event in the career 
of a North-American health professional34. 

 
The point to highlight here, while reconstructing origins and influential factors, is 

that in the U.S. the primary role of tort law (particularly, the tort of negligence), is its 
ability to become common in a more rapid and articulated way even compared to the 
English motherland. This is precisely because the tort of negligence constituted (and still 
contitutes) a more agile and dynamic tool to govern responsibilities in a society that from 
an “economic” point of view became strong very rapidly and from a "technical" point of 
view  became more complex35. 

 
And what functions did criminal law perform in the U.S. system? 
 
Born as deeply imbued with the concept of sin, and collected in laws often with a 

"strong Mosaic flavour"36, this branch of the legal system, from the colonial period to the 
end of the nineteenth century, remained little developed. Since criminal law is, as a matter 
of fact, the primary instrument in the hands of authorities to exercise power over the 

                                                           
32 On the insistence of the American legal theory of post civil war in limiting both the responsibility and 
the measure of the damages, v. GILMORE, The Ages of American Law, 1977, edited in Italy by Giuffrè, 
pag. 87; compare with FRIEDMAN, paper cit., 481. 
33 On the historical evolution of malpractice, see ROTHMAN, Strangers at the Bedside. A History of the 
Law and Bioethics Transformed Medical Decision Making, New York, 2003, 127 following; CAVE 
BONDI-CIALLELLA, Medical negligence:  inquadramento storico della responsabilità professionale nel 
diritto americano, in Iura Medica, 1995, 22 (res ipsa loquitur is the civil thesis based on a presumption of 
negligence created by a circumstantial evidence). 
34The explosion of responsibility had such a force that (as often happens) it has finally produced an 
"oscillation" in the opposite direction, a counterrevolution (FRIEDMAN), proved by the introduction, in 
more than thirty States, of rigid limitations (caps) on the amount of the compensations, especially with 
regard to non-economic and so-called "punitive" damages: see STUDDERT-MELLO-BRENNAN, Health 
Policy Review, in ANDERSON (Ed.), Medical Malpractice. A Physician's Sourcebook, Totowa, 2005, 237; 
FRIEDMAN, American Law, paper cit., 539.  
35  ALPA, Presentation of FRIEDMAN, Storia, paper cit., XXIV. Compare with CAVE BONDI-
CIALLELLA, paper cit., 11 
36 FRIEDMAN, Storia, paper cit., 67. Compare with ID., American Law, paper cit., 365. 



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citizens, in a country where, compared to England, "the degree of the connection between 
the rulers and the ruled was greater [... ] this led to a considerable laxity in the effective 
use of criminal measures"37. 

 
Around 1900, the social investment in the fight against crime increased, with an 

aim to contrast mostly violent crimes (which, especially in the cities, were no longer 
tolerable by an industrial society, now characterized by close relations). As happened 
with the tort, crime was initially considered "bad for business", and was consequently 
repressed 38 . So much so that it was also possible to configure responsibility for 
unvoluntary crimes, but only if directed against property. A good – property –  which, in 
order to protect the wealth of the country, received in the criminal area a much stronger 
protection than that of the person. 

 
With regard to the dimension of protection of property in the framework just 

outlined, personal property and in particular health, began to evolve from the standpoint 
of administrative organization of health services, towards a purely privatistic dimension: 
the dimension that still mainly characterizes them today. 

 
III. "Access to justice", paths and outcomes: contingent fee in tort area and 

criminal justice as "free legal aid"; "preponderance of evidence" and "beyond 
reasonable doubt"; compensation for a few people and symbolic criminal 
convictions. 

 
To evaluate the functionality of the different forms of protection it is necessary to 

innitially take into consideration the conditions of access to justice, then the different 
paths and trial "turning points", with particular attention to the key element of causality, 
and finally the outcomes of the different models. 

 
One factor of American specificity, with regards to the tort of malpractice, is the 

contingency fee. This condition guarantees legal aid and specialized consulting services 
to clients without any advance payment, and only in the case of compensation the fee and 
reimbursement of expenses are recognised to the professionals, generally in the amount 
of 1/3 of the final reimbursement39. 

 
Does the contingent fee make access to justice easier for the victims of 

malpractice? 
 
According to data on the US system, in the context of adverse events due to 

negligence (therefore, of potentially "valid" claims), only about 2% (even 1.2%, 
according to a study conducted in a Chicago hospital40) are actually filed as judicial 

                                                           
37 FRIEDMAN, Storia, paper cit., 285. 
38 FRIEDMAN, last paper cit., 606. 
39 GREMBI, Una riflessione tra economia e diritto sulla malpractice medica: i casi di Stati Uniti e Italia, 
in Mercato, concorrenza, regole, 2005, 459. 
40 HYMAN-SILVER, Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid, 59 
Vand. L. Rev. 1091 (2006). 



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proceedings. It is the phenomenon of so called under-claiming (patients entitled to 
compensation generally do not sue). The overwhelming majority of patients suffering 
medical damage due to negligence, for various reasons, do not sue (98%)41. 

 
The contingent fee seems to advantage filing only the actions with the highest 

“bet”, in terms of potential refundable damages. 
 
The total number of actions brought about each year throughout the nation is 

around 85.000, and in general, on this final figure, under-claiming is far more prevalent 
than over-claiming (patients who sue but do not deserve compensation)42. 

 
Assuming that, as the most recent research seems to show, in cases of malpractice 

a small minority of the injured sue (2% in the US, 16% in Italy, according to the Tribunal 
for the Rights of the Sick43), it may seem paradoxical or provocative that some authors 
even say that "the problem of  medical negligence is that not enough people sue"44. 

 
For a long time now the most authoritative doctrine has been committed to 

"bringing our attention to the law, or in any case the expectation by flesh and blood 
victims of crime to be included, as co-protagonists, in the legal and judicial circuit"45. 

 
Obviously for the victim, "being included in the legal system" means, above all, 

not having the economic burden of providing resources necessary to file an action. 
 
It is necessary to consider that to bring about a lawsuit for malpractice, 

considerable resources are needed. Resources not only in economic terms, but also in 
terms of time; not to mention that the long, inefficient and expensive procedure of tort 

                                                           
41CHESSICK-ROBINSON, Medical Negligence Litigation is Not the Problem, 26 N. Ill. U. L. Rev. 566 
(2005), which underline the very high costs (from $ 35.000 to $ 50.000) necessary to bring a civil suit for 
malpractice; according to STUDDERT – BRENNAN – THOMAS, Beyond Dead Reckoning: Measures of 
Medical Injury Burden, Malpractice Litigation, and Alternative Compensation Models from Utah and 
Colorado, 33 Ind. L. Rev. 1643 (2000), one possible reason is that the damages are too small to justify a 
lawsuit; another possible reason is that the lawyers, who typically work on contingency fees, wish to file 
action only for "attractive" clients (i.e. victims easy to pity, with causes for serious damages); alternatively, 
some people are simply not litigious by nature. On why so many "real" victims do not sue, see also 
HYMAN-SILVER, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid, 59 Vand. 
L. Rev. 1113 (2006): «the malpractice system is expensive, burdensome, and slow. To become a plaintiff, 
a patient may have to terminate an existing relationship with a health care provider and find a new source 
of treatment. A patient may fear being “blacklisted” that is, being refused treatment by other physicians or 
providers who steer clear of patients known to sue». 
42 HYMAN-SILVER, Medical Malpractice Litigation and Tort Reform: It’s the Incentives, Stupid, 59 
Vand. L. Rev. 1089, 1092 (2006). Further on, the authors also analyze the reasons why patients sue: «The 
incentive to sue depends on the severity of the injury, out-of-pocket expenses, and the extent of the patient’s 
irritation with the provider». 
43 According to the data of the Italian Tribunal for the Rights of the Sick, reported in the article Badly 
treated by the 50% of the operators, Corriere della Sera, 17/4/2007, "in 84% of the cases of suspected error 
reported by citizens no medical and legal advice starts". 
44  MULCAHY, Threatening Behaviour? The Challenge posed by Medical Negligence Claims, in 
FREEMAN & LEWIS, Law and Medicine, New York, 2000, 102. 
45 FIANDACA, Perché punire e come punire?, typescript, 1. 



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transforms most of the resources (54%) into profits for lawyers and technical experts, in 
addition to insurance and administrative costs46. 

 
Less than half – if all goes well – directly favors the injured. 
 
From this standpoint, it is evident that criminal law potentially offers some 

practical advantages if compared to other forms of protection, and in particular if 
compared to tort law. In the event that the complaint is likely valid, in Italy the public 
prosecutor then orders a publicly funded consultation. The patient can use this 
consultation even in the event of a civil trial. 

 
That public prosecution can be interpreted as the cheapest way to obtain justice is 

not new, even in the U.S.47. Already Packer, in his famous work The Limits of Criminal 
Sanction, speaking of latent functions of criminal law, noted that "the service [of the 
public prosecutor] is very satisfactory to the plaintiff, since he obtains free legal aid"48.  

 
At the same time it must be kept in mind that there are risks of manipulation, and 

potential losses undergone by the public prosecutor's function:  «it is a burden for the 
public prosecutor's office to be called to carry out functions essentially of tort law, and 
equally important, there is always the possibility of injustice and abuse, due to the 
coercive effect of the threat of a trial against a person who is not normally represented by 
a lawyer». 

 
But the only plausible alternative – to quote Packer again – is "to provide adequate 

legal aid to the majority of individuals who can not afford legal services at the current 
price". 

 
Continuing with the comparison between the different process paths and trial 

"junctions", one of the main differences between tort and criminal law seems to concern 
the element of causality. 

 
Given that satisfactory and punitive interests are both present in the victim (either 

the injured party in the civil realm or the plaintiff in criminal law), and given that these 
interests, although variously emphasised, are not easily dissociable, nor separately 
"weighable" in different trials (civil and criminal), the variation between methodologies 
for ascertaining civil causality and criminal causality depends on the position of the 
accused in the criminal trial, compared to the civil defendant. 

                                                           
46 BARRINGER, A New Prescription for America’s Medical Liability System, 9 J. Health Care L. & Policy 
241 (2006). On the low efficiency of the medical malpractice system, see MELLO-STUDDERT, The 
Medical Malpractice System: Structure and Performance, in SAGE-KERSH (Eds.), Medical Malpractice 
and the U.S. Health Care System, New York, 2006, 11. 
47 On this point, with specific reference to the Spanish experience, see RODRIGUEZ VAZQUEZ, Doctors 
in Spanish Criminal Law: Medical Responsability for Death and Injuries caused by Negligence in Present-
Day Spain, in 25 Medicine and Law 411(2006).  
48 PACKER, The Limits of Criminal Sanctions, Stanford, 1968, Italian edition by Giuffrè, 1978, 304. 



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The reflections on the "transcendental" values and the immense scope (to resume 
the expressions of the American judges) brought into play by the accused, and on the 
accused’s disadvantaged position, appears central in U.S. case law. On this basis, the 
construction of a probative standard for criminal trials (and for criminal causality) which 
is far «more stringent» than the civil one, has been initiated: bifurcation / differentiation 
of the category-causality, criminal versus civil, subsequently imported in Italy, with the 
leading sentence of the Italian Supreme Court, civil joint session, 11/1/200849. 

 
Also on this basis, given that the etiological development "the trial is substance", 

a different substantial status of causality is also founded (the thesis of causality becoming 
a trial element is now becoming established, in the sense that upon the configuration of 
this category of substantive criminal law, the method of its evidential scrutiny has a 
decisive influence)50. 

 
In U.S. law, where the distinction between criminal causality / "beyond any 

reasonable doubt" and civil causality / "more probable than not" has arisen, the different 

                                                           
49 Italian Supreme Court, civil joint session, 11/1/2008, n. 576, V. c. USL 42 Napoli (about responsibility 
for damage from transfusions with infected blood), in Cass. pen., 2009, 69, with a note of BLAIOTTA, 
Causalità e colpa: diritto penale e diritto civile si confrontano. 
50 So, quoting the famous "Franzese" sentence of the Italian Supreme Court, criminal joint session, 
10/7/2002 (in Foro it., 2002, II, 598, with a note of DI GIOVINE, La causalità omissiva in campo medico-
chirurgico al vaglio delle sezioni unite;  in Dir. pen. e proc., 2003 , 50, with a note of DI MARTINO, Il 
nesso causale attivato da condotte omissive tra probabilità, certezza e accertamento; in Riv. it. med. leg., 
2002, 1605, with a note of FIORI - LA MONACA - ALBERTACCI, Le Sezioni unite penali della 
Cassazione riaffermano l'esigenza di elevata probabilità logica del nesso causale nelle condotte mediche 
omissive: ma nel contempo confermano, pur dichiarando prescritto il reato, la responsabiità del medico in 
un caso di colpa e nesso causale poco probabili): «the definition of the concept of criminal causality 
significantly depends on trial scrutiny, which remains decisive for the decoding, in effectual terms, of the 
causal development related to the single event, especially in the presence of complex phenomena of 
"multiple causality", linked to the modern advancement of activities». In doctrine, on the criminal 
categories becoming trial elements, a far-reaching phenomenon in which "criminal law is adapting, in its 
own structures, according to procedural forms", see PADOVANI, Il crepuscolo della legalità nel processo 
penale. Riflessioni antistoriche sulle dimensioni processuali della legalità penale, in Ind. pen., 1999, 541. 
On the impact of proof in defining the juridical concept of causality, see DONINI, La causalità omissiva e 
l'imputazione per l'aumento del rischio. Significato teorico e pratico delle tendenze attuali in tema di 
accertamenti eziologici probabilistici e decorsi causali ipotetici,  in Riv. it. dir. proc. pen., 1999, 82; 
MARINUCCI, Il diritto penale messo in discussione,  in Riv. it. dir. proc. pen., 2002, 1041; DI GIOVINE, 
La causalità omissiva, cit., 612; PIEMONTESE, Le problematiche della causalità omissiva: tendenze 
emergenti e modelli prasseologici, in Scritti in onore di Antonio Cristiani, Torino, 2001, 603; FIORE, La 
teoria generale del reato alla prova del processo, Naples, 2007, 91 following.; in a critical sense, STELLA, 
L'allergia alle prove della causalità individuale, in Riv. it. dir. proc. pen., 2004, 380, who strongly 
emphasizes the danger that case law proceeds «in the name of an ill-concealed aspiration to start off an 
authentic 'evidential function’ of the substantial criminal law». In the German doctrine, on the difficult 
relations between "concept" and "proof" of causality, compare with VOLK, Sistema penale e criminalità 
economica, Naples, 1998, 89: "Our distinction between theory and praxis finds its correspondence in the 
different systems of substantive and procedural law. [...] We proceed, in relation to the question of law, in 
a different way from the question of fact. This works very well until only the "law" is relevant in the first 
sector and only the "experience" in the second. But if you need rules of experience already for the definition 
of the concept and then again for the proof, as happens for the causality, then two things happen: or it is not 
sure if a certain topic concerns the concept or the proof, and it becomes difficult to mutually delimit, in an 
unambiguous and reasonable way, the areas of substantive and procedural law." 



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evidentiary standards, criminal and civil, were "sculpted" by Judge Brennan in the famous 
ruling by the Supreme Court in 1970, King Winship51. These are the reasons: "In a civil 
suit between two private parties for money damages, for example, we view it as no more 
serious in general for there to be an erroneous verdict in the defendant's favor than for 
there to be an erroneous verdict in the plaintiff's favor. A preponderance of evidence 
standard therefore seems peculiarly appropriate, for [...] it simply requires the trier of fact 
to believe that the existence of a fact is more probable than its nonexistence before [he] 
may find in favor of the party who has the burden to persuade the [judge] of the fact's 
existence. In a criminal case, on the other hand, we do not view the social disutility of 
convicting an innocent man as equivalent to the disutility of acquitting someone who is 
guilty […] I view the requirement of proof beyond a reasonable doubt in a criminal case 
as bottomed on a fundamental value determination of our society that it is far worse to 
convict an innocent man than to let a guilty man go free" (italics ours). 

 
It is an argument that is rationally results oriented: "The standard of proof 

influences the relative frequency of these two types of erroneous outcomes. If, for 
example, the standard of proof for a criminal trial were a preponderance of evidence, 
rather than proof beyond a reasonable doubt, there would be a smaller risk of factual 
errors that result in freeing guilty persons, but a far greater risk of factual errors that result 
in convicting the innocent. Because the standard of proof affects the comparative 
frequency of these two types of erroneous outcomes, the choice of the standard to be 
applied in a particular kind of litigation should, in a rational world, reflect an assessment 
of the comparative social disutility of each"52. 

 
What are, finally, the outcomes of the various forms of protection, prevalently 

civil law in the U.S. and the one "driven" by criminal law in Italy? 
 
According to U.S. data, in the aggregate of lawsuits for malpractice filed each 

year, the subset of the victorious cases amounts to less than half of the total, and includes 
both "valid" and theoretically “invalid” cases: hence the use of expressions such as 
jackpot justice, or "lottery of lawsuits", to describe the quasi-random mode of 
compensation allocation53. 

 
The data is confirmed by the empirical study conducted by Merrit and Barry in 

Ohio, according to which in only 30.7% of cases do patients obtain a victorious verdict 

                                                           
51 397 U.S. 358 (1970). 
52 These are the reasons for consent expressed by Judge Harlan in the Winship sentence. On the relationship 
between evidentiary standards and the costs of false acquittals and false convictions, see LAUDAN, Truth, 
Error, and Criminal Law. An Essay in Legal Epistemology, New York, 2006, 69, 87, in the sense that the 
evidentiary standard "incorporates the social contract about the acceptable relationship between true 
acquittals and false convictions". On the causality and evidentiary uncertainty about negligent conducts see 
BEEVER, Rediscovering the Law of Negligence, Oxford and Portland, 2007, 413 following. 
53 In a critical sense, see HYMAN – SILVER, op. cit., 1092 following, 1106. 



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in court 54  (in 38% of the cases, according to Jury Verdict Research 55 ): a low rate, 
considering that, according to general statistics on tort trials, the actors win in 52% of the 
cases on average56. 

 
Surely better, for patients, is the data related to extra-judicial compensations 

(which constitute the most common outcome of proceedings). These are granted more or 
less in half of the cases, even if normally for much less than the amount due57. 

 
In the final analysis, surveys seem to show that the US tort system tends to under-

compensate (both in absolute figures and in relation to the amount of the compensable 
damage), rather than over-compensate (as many believe) the victims of medical 
negligence (only in rare cases victims with minor real damages are slightly over-
compensated)58. 

 
And the criminal responsibility of health professional in Italy? 
 
Its function seems to be primarily of symbolic stigmatization: the effective 

execution of the sentence (especially in the detention mode) tends to become a rather 
remote eventuality:"Criminal law has been reduced to a kind of inoffensive mimicry"59, 
to quote Sgubbi. 

 
It is mostly a problem of avoidance of sanctions, due to judicial indulgences in 

the application of conditions to suspended sentences. 
 
The conditional suspension of punishment (extended in 1990 to accessory 

penalties), "in its distorted practical automatism, disregards – according to common 
opinion – every guarantee on the non-danger of the subject and every control and 
assistance"60. Conceived on the Anglo-Saxon model of probation, that is, the suspension 
of the sentence of condemnation (originallly aimed at the rehabilitation of the youngest 
defendants), in continental Europe turns into the suspension of the execution of the 
penalty. As a remedy for short prison sentences, enforced for occasional and unrepeatable 

                                                           
 
54 MERRIT-BARRY, Is the Tort System in Crisis? New Empirical Evidence, 60 Ohio St. L. J. 315 (1999). 
55  Health Care Providers Win Most Cases, in 
http://www.medicalmalpracticetoday.com/medicalmalpracticestats-hcpwinmore.html (statistic based on a 
national database of 193.500 verdicts and compensations for personal damages). 
56  Medical Malpractice Trials and Verdicts in Large Counties, in 
http://www.medicalmalpractice.com/national-content.cfm. 
57JAKIW, The Current Medical Liability Insurance Crisis: An Overview of the Problem, Its Catalyst and 
Solutions, 13 Annals Health L. 510 (2004); HYMAN-SILVER, paper cit., 1106: «On average, the actors 
recover aroung half of their losses [...] Medical malpractice cases also seem to take a longer time than other 
cases of tort».   
58 HYMAN-SILVER, paper cit., 1104; compare with Compensation Payments in Medical Malpractice 
Litigation, in http://www.medicalmalpractice.com/national-content.cfm. 
59 SGUBBI, cit., 90. 
60 MANTOVANI F., last paper cit., 760 



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FACTORS, CAUSES, PATHS AND OUTCOMES 

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crimes, in Italy the suspension undergoes serious functional distortions, until its almost 
total deformation into clemency measure61. 

 
This, first of all, because the Italian legislator has expanded its application range, 

regulating the possibility of a second concession, extended to convictions up to two years 
(also resulting from the sum of the first and the second convictions: a penalty limit which, 
normally, is not consistent with other legislations). Secondly, because the conditional 
suspension of the sentence, in practice, is applied almost automatically. As it is almost 
automatical for the judge to allow for “generic” extenuating circumstances. 

 
And again: given that the detention penalty concretely imposed, taking into 

account the various reduction bonuses (up to a third, for example, in the case of alternative 
procedures) rarely exceeds six months, it is usually replaced, sic et simpliciter, with the 
pecuniary penalty. The latter (considered as a substitute sanction in Law n. 689/1981, 
Article 53, with the aim of containing short detention penalties) carries with it the 
traditional drawbacks of the pecuniary penalty in the Italian system. Mainly, a poor 
deterrent effect and a discriminatory character in favor of the upper classes (who, despite 
the theoretical graduation of sanctions, are less affected by intimidating powers). 

 
With reference to negligent injuries, the fictive nature of punishment is revealed 

by means of the victim’s complaint (procedural rule introduced with the 1981 reform): 
this prosecution regime often leads to a specious use of criminal justice, as a form of 
pressure to obtain an extra-judicial compensation. Compensation is indeed usually 
followed by the withdrawal of the victim’s complaint, and therefore by waiver of 
punishment. 

 
In Italy, the impression of a predominantly "symbolic" role played by criminal 

law in the field of medical guilt seems to have emerged. 
 

 
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	MEDICAL MALPRACTICE AS A TORT IN THE U.S., AS A CRIME IN ITALY: FACTORS, CAUSES, PATHS AND OUTCOMES
	I. Introduction.  Medical malpractice in U.S. law. No criminal responsibility for personal injury negligence or involuntary manslaughter due to minor (not gross) negligence. From practical problems to political-criminal problems…
	II. (continued) ... the distribution of omissive and negligent crimes, between individualistic liberalism, solidaristic statism and communitarianism; between the reactive State and the active State; between the individual model of property and the col...
	III. "Access to justice", paths and outcomes: contingent fee in tort area and criminal justice as "free legal aid"; "preponderance of evidence" and "beyond reasonable doubt"; compensation for a few people and symbolic criminal convictions.