Self-determination and Accountability in Italy: balancing Informed Consent in Medical Treatment and Liability

In the Italian legal system, the right to therapeutic self-determination in medical treatments stands independently from the right to health. Violations of this autonomy can have consequences that extend beyond physical injury. Despite its significance, implementing this autonomy remains challenging. When dealing with hospitals and medical professionals, the framework of medical malpractice governs actions. Furthermore, when seeking compensation, the use of medical malpractice tables often results in inadequate responses, since the damage to self-determination is obtained by calculating and considering a percentage of the damage to the health. This research aims to address this gap by proposing alternative approaches. Drawing inspiration from contractual law, this research advocates for applying the principles of contractual liability to cases of breach of the duty to inform, by considering the different legal framework and the autonomy of the duty to inform from the duty of diligent care. Just as financial intermediaries face consequences for failing to provide accurate information, medical practitioners should be held accountable for inadequate informed consent. By decoupling the assessment of harm from the medical malpractice regime, by applying the Court of Milan tables, it is possible to establish a more nuanced understanding of damages. This approach ensures that violations of the patient’s right to information are not dismissed solely due to the absence of physical harm. Ultimately, the goal is to foster a legal landscape where informed consent and accountability coexist harmoniously.