¹ About this issue, the words of F. Modugno are always current, which defines the right to health, as a new right due to its different location in the economic-social sector ^[1].

²About the depatrimonialization process, see what Anna Lasso has written in a recent document on the issue of the centrality of the person in the judicial regulation ^[2].

³The Constitutional Court, in the ruling n. 471/1990 has specifically recognized, that the liberty referred to in art.13 of the Constitution, includes also the freedom of every one to dispose of his own body. The ruling has created a close connection between the right to health and the liberty of self-determination: constitutional article 13, produces a guardianship that is centrally important in the constitutional project, having as an objective an inviolable right which is included among the supreme values, an unfailing essential core of the individual, in the same way than the adjacent and closely related right to life and to physical integrity, alongside which jointly concurs to constitute the first womb of all other rights constitutionally protected by the person. On the contrary, against, as it is widely known, Castronovo thinks that the right to health, and self-determination, must stay separated ^[3].

⁴The importance of the already mentioned personalistic principle, linked to Article 32 of the Constitution, also has been set as relevant in the hermeneutical activity area of Civil Law. For example, regarding the issue of property guardianship, Article 873 of the Civil Code, is interpreted making an explicit reference to the concept referred to, in the first section of Article 32 of the Constitution. The discussion, after all, cannot exclude the reference to Article 844 of The Civil Code, which acknowledges to the owner of a piece of land, the right to prevent the entry of fumes or heat, the exhalations, the noise, external shock and similar propagations originated at a neighbor’s land, which exceed the normal tolerance levels: consequently, the corresponding inhibition actions can be performed by the affected party in order to achieve the “end or cease of harmful or toxic activities, which are detrimental to people’s health” (cf. Civil Appeal, SS.UU, court ruling number 10186/ 1998). Cf. Also Civil Appeal, Section III, Court ruling number 8420/2006.

⁵The Civil Appeal, Section IV, Court Ruling number 36519/2001 has been expressed in this way or, in the spirit of this writing. Cf. concerning the perspectives outlined by A. Fiori, G. La Monaca, G. Albertacci ^[4].

⁶In order to weaken such right, the apparent limitations foreseen in our Regulations in Art V of the Civil Law, are valid (they prohibit acts of disposal of a person’s own body that «could cause a permanent diminishing of their physical integrity, or else be contrary to the law, be a disruption to public order or contrary to good manners»). It is also valid what is stated in the Second Section of Article 32 of the Constitution (the one which regulates, instead, the relationships between an individual and the community, in light of, and through the optics of the so called obligatory sanitary treatments). As for the first alleged limit, it does not represent an absolute principle. In order to achieve a psycho-physical wellbeing, the patient has the right to submit himself to the sanitary care he needs, which are considered the most efficient for his safeguard; and if as a consequence, the direct interested party may use his right to a psycho-physical integrity within the limits in which, it will work for him for therapeutic purposes, it is normal that, the interpretative/applicative RATIO of Article V, should be limited to the actions which are not aimed to the guardianship of the personal health. The debate which has been held regarding the relationship between the two standards, has frequently been accommodated, according to Donatella Morana [⁵, p. 143], to a vague reading of the code’s standard: they have mistakenly started based on it, in order to interpret the constitutional expert opinion; conversely, it should have been started based on the Constitution, in order to examine the validity and the scope of the ordinary legislation. Cf. also, in reference to this proposal, whatever has been declared by Barbara Pezzini [⁶, pp. 50 and subsequent]. As the Constitutional Court has declared, Court Ruling number 161/1985, «By a constant jurisprudence, the acts of disposal of our personal body, when they are aimed toward a personal guardianship, even a psychic one, should be considered legal», even if they are specifically going to undermine the physical integrity of an ill person until leaving him/her disabled compared with how he/she was before the disposal. Think about the case of a surgery such as a diabetic foot amputation, without which, the patient would be in death jeopardy: «the therapeutic nature that science assigns to a surgical intervention, and that the law recognizes […], prevents it from illegality» (cf. Constitutional Court, ruling number 161/1985; in this theory, M. Bilancetti [⁷, p. 232]). The statement of article 5 of the civil code, it definitely does not limit freedom of self-determination, but on the contrary, it protects it, for it prohibits abuse, even though the disposal act of the personal body (Cf. P. Barile [⁸, p. 388]). It is necessary to point out that, the analyzed prohibition is limited only to the positive behaviors, like it is diffusely recognized by the theory (cf. V. Crisafulli [⁹, 561]: «therefore, it does not extend to, the mere inertia behaviors that, not withstanding, have as a consequence the diminishing of the integrity. Moreover, that does not find any application, not even in the case in which a diminishing is being discussed, thus called temporary, as it happens, for example, in the case of blood donation, or of a breeding contract»). Regarding the second limit, Constitutional Court, ruling n. 307/1990 it has been declared that a TSO can be imposed only in prevision that «does not impact negatively in the health status of who is subjected to him, except for those consequences that, due to its timeliness and scarce entity, would apparently seem normal of all medical intervention, and therefore tolerable». After all, as it is pinpointed by the Constitutional Court, ruling n. 307/1990: «the law which imposes a heath treatment, is not incompatible with Article 32 of the Constitution, if the treatment and care is aimed not only to improve or to preserve the health status of who is subjected to it, but also to preserve the health status of the others, for it is precisely such ulterior purpose, concerning to the health as an interest of the community, what justifies the understanding of that self-determination of man, which is inherent to the right of each one to health as a fundamental right». (Cf. regarding this point the statements of A. Barbera [¹⁰, p. 90]). The legislator (law n. 180/1978, art. 1) points out that the cohesive character of a treatment, shall never suppress or prejudge the exercise “of the civil and political rights guaranteed by the Constitution”. This means that an obligatory medical treatment, cannot negatively impact on the capability of private rights, nor over the capability of the public right of the patient. The determination of this ulterior guarantee is not casual, nor either, a useless repetition. Cf. Constitutional Court, ruling n. 118/1996: «the health constitutional discipline includes two sides, the individual and the subjective one, the first one (health as “fundamental right of the individual”), social and objective the second one (the health as ^“ an interest of the community”). Sometimes the first one can be in conflict with the second one, according to an eventuality present in the relationships between the whole and the parts». Therefore, to the dynamic individual, are requested some benefits in obedience to those non-derogable duties of political, economic and social solidarity established in Article 2 of the Constitution, and that help to provide clear proof of a clear reconsideration of no low importance of the concept of person. The interest of the community in this sense, represents an external limit of the individual right, a «barrier that limits its amplitude without conditioning its usufruct» (Cf. the writing of Donatella Morana [⁵, p. 163]): The guardianship of the individual’s right identifies this way the general rule; the collective interest, conversely, constitutes, from the beginning, its justified eventual exception (Cfr. the perspective highlighted by L. Carlassare [¹¹, pp. 110 y ss.]).

⁷In order to go deeper into the issues of health, autonomy, freedom of availability and the inherent problems of the therapeutic autonomy, be allowed to refer to whatever I have written in the past ^[12].

⁸There are many international standards that foresee the need for an informed consent by the patient, in the area of medical treatments: see Article 24 of the Convention on the Children’s Rights, signed in New York on November 20, 1989, ratified and issued with the Law of May 27, 1991, n. 176; Article 5 of the Convention on the Human Rights and on Biomedicine, signed in Oviedo on April 4, 1997, ratified by Italy with the Law of March 28, 2001, n. 145; Article 3 of the Chart of the Fundamental Rights of the European Union, issued in Nice, on December 7, 2000.

⁹The definition is taken form S. Spinsanti ^[13].

¹⁰About the informed consent issue, see, if it pleases you, EX PLURIBU (in most of the cases) one of my recent works and the bibliography there referred ^[14].

¹¹A behavior like that would be detrimental “on the personal sphere of the subject and the moral freedom of the person”. Cfr. F. Bricola, G. Zagrelbesky, Systematic Jurisprudence of Criminal Law [¹⁵, p. 424].

¹²Cf. Court of Milan, V civil section, ruling n. 3520/2005: «The consent must be the outcome of a real relationship, and not only apparent between the physician and the patient, in which the physician is obliged to gather an effective and participative adhesion, not only on paper for the intervention. Therefore this is not a purely formal or bureaucratic act, but the essential condition for transforming a normally illegal act, the violation of the psycho-physical integrity, in a legal act, which is precisely the source of responsibility».

¹³The consent (properly informed) guarantees «the free and aware election by the patient and, therefore, his own personal liberty, according to Article 32, second section of the Constitution». Cf. Constitutional Court ruling n. 438/2008.

¹⁴Again the Milan Court, declares this way, in the already mentioned ruling n.3520/2005. It is the Nuremberg Code of 1949, the first one in defining as essential the “voluntary consent” of the human subject. Nevertheless, such complete judicial formula has had its origin in the United States, where the debate, developing first in a limited fashion according to the need for the patient’s consent in the previous stage to that closely surgical, has come later to consider the information as a fundamental characteristic for its configuration (the so called INFORMED CONSENT of the XX Century). The historical background records cited by the American Courts, which have marked the birth of a consent as a fundamental act, and have followed its evolution until turning it into an informed one, are the Slater case (1767) the Carpenter case (1871), the Mohr case (1905), the Schloendorff case (1914) and the Salgo case (1957). Finally, the Cooper case (1971), that shows evidently how the main objective of the informed consent be in the end, the one of making the patient aware of all the concrete aspects of the therapy, based on which he could later on, conscientiously choose what thing to do / or not to do. In Italy the informed consent has had full recognition only in recent times, notwithstanding that it is still lacking of a unitarian organic discipline. The legislator has often dealt with the informed consent in the health sector, especially with law 107/ 1990 regarding transfusions (later on cancelled by the law 219/2005), with the law 135/1990 (program of emergency interventions for the prevention and fight against AIDS) and the law decree 23/1998 in the issue of clinical experimentation. Nevertheless, it is pointed out that, the law 40/2004 in the issue of assisted reproduction, which dedicates to informed consent a specific availability (Article 6), and the law project 211/2003, related to the application of good clinical practices, in the execution of experiments of medication for clinical use. The frame of the discipline is completed by the deontological standards which confirm the sensitive demand of adjusting the ethical rules to the intervened metamorphosis of the physician-patient relationship. The deontological code in its standard constitution, takes into account social sensitivity and its corresponding mayor conscience that the person already possesses, and sets those mentioned demands to the new goals taken from the advancement of the biomedical and pharmacology sciences, and of the ethical problems collaterally generated and deepened by the bioethics committees. Cf. also, Constitutional Court ruling n. 253/2009.

¹⁵The definition is extrapolated by the Civil Appeal, section III, ruling n. 16543/ 2011, which establishes that: «the right to informed consent, as a non reconsiderable right of the person, has always to be, and in any way respected by the physician, unless emergency cases arise, discovered, as a consequence of an agreed and programmed intervention, and for which had been required, and has been obtained the consent; cases that put in total jeopardy the life of a person, which is a good he receives and which is related to the primary guardianship in the scale of legal values, as a basis of the judicial order and of the civil life; or either it has to do with an obligatory medical treatment».

¹⁶Regarding the subject matter, EX PLURIBUS (in the majority of the cases), you will be redirected to the works of G., COCCO [¹⁶, p. 485], M., GRAZIADEI ^[17], G. Marini ^[18], L. NIVARRA ^[19], P., ZATTI ^[20], C., CASONATO ^[21, ^22].

¹⁷Cf. the work of F., MANTOVANI ^[23].

¹⁸Also in his monograph, F., MANTOVANI ^[24].

¹⁹«The informed consent wants to put at the physician’s center of attention not only, the sickness, but also the person needing treatment; in such a way that to the duty of information by the physician corresponds today the figure of the participant ill person, which can consider the information as his irrevocable right, and not any more as a gentle concession». Cf. F. Giunta ^[25].

²⁰Cf. regarding this argument, whatever has been exposed by the National Committee for Bioethics [²⁶, p. 39]: «the so called paternalistic stage has lasted thousands of years, during which the link between physician and patient has been essentially dyadic, and few strangers, except relatives, could penetrate into this personal magic kingdom of the care treatment. It was a model of medicine based on, more than how much it would be today, on the trust in the technical capability of the physician, and on his moral structure, supported in the attribution of magical powers to the physician, and it was featured by the patient’s dependence and by the control exerted by the physician».

²¹Cf. C., PARODI, V., NIZZA [²⁷, p. 417].

²²Cf. whatever is referred by Paola Helzel [²⁸, p. 615]

²³R., PODROMO [²⁹, p. 89].

²⁴I will choose the proper treatment regimen for the patient’s good according to my judgement and strength, and I will refrain myself of causing any harm or damage» (This is the way it is written and read, in the classical Hippocratic Oath).

²⁵ Cf. P., HELZEL [²⁸, p. 615].

²⁶All this, writes C., CORATELLA [³⁰, p. 4], it is the outcome of «the spreaded out raise of the communities instruction level, and of the renovated cultural environment, that has characterized the eighties and has determined, on one hand, an each time greater capability of understanding of the therapeutic instructions provided by the physician; and on the other hand, the people’s awareness of their own rights».

²⁷Cf. the expression Life (right to) of G., GEMMA ^[31].

²⁸Cf. the monography P., BORSELLINO ^[32].

²⁹Cf. again, the words of P., HELZEL [²⁸, p. 617].

³⁰ Cf. the thesis of F., VIGANÒ [³³, pp. 524-525].

³¹Are exceptions the cases in which it is not possible to refer to the patients will, because he is either naturally incapable, or because he has waived to be an autonomous decision center.

³²Regarding this issue, in general, it is redirected to the writings of I., ANDORLINI y A., MARCONE [³⁴, pp. 145 y ss.], plus the ones of D., GOUREVITCH ^[35], P., MAZZARELLO [³⁶, pp. 3 y ss.], G. MONTANARI VERGALLO ^[37] y M., TRABUCCHI ^[38].

³³Cf. the pages of F., D’AGOSTINO and L., PALAZZANI [³⁹, p. 15].

³⁴The information contributes to validate the consent, because it is necessary, but not enough by itself. Besides such requirement, it is recognized as fundamental, other characteristics that consent must possess in order to be considered evidently valid: it must be free, personal, evident, current, acknowledged (in order to deepen into the above mentioned specifications, cf. Iadecola ^[40], E., IANNELLI [⁴¹, pp. 39-49]). As for the form, nonspecific prescription considers that consent should necessarily be in writing. Only Article 30 of the deontology code makes reference to an eventual documentation only in the case that the intervention would be particularly difficult. The consent must be real and effective, and not only alleged; current (not anticipated), must therefore persist, at the time of the intervention’s beginning, and it is always revocable. The prevailing jurisprudence denies, in fact, that the so called assumed consent should undertake prominence, or else as absent, but that it is considered that it was already granted, if the patient could have been able to do it (cf. Civil Appeal, section III, ruling n. 290984/2012; versus, Civil Appeal section IV ruling n. 5976/2003, in which it is declared that «for what it is referred to, finally, to the patient’s consent […] the consent must be real, informed, peaceful or, if the conditions are given, alleged… under the hypothesis of material impossibility of consent declaration, and of an urgent therapeutic need).

³⁵Cf. Civil Appeal, section III, ruling n. 15698/2010.

³⁶The information must be particularized and specific, in such a way to imply «the total acknowledgement of the medical and/or surgical intervention’s nature, and of its scope and extension, its risks, of the expected results and of the possible negative consequences» (cf. Civil Appeal, section III, ruling n. 7027/2001). It has been spoken about “informed consent” at the end of the 50’s, when the California Supreme Court had declared it as a principle against Leland Stanford in 1957. In the ruling, the Court has declared the physician’s duty to inform the patient about all the facts which would be necessary to form the basis of a conscientious consent to the proposed treatment care: for the first time, in inquiry about the legality of the medical intervention it is not limited to the subsistence or not of an explicit consent, but concentrates the attention in the presence of a consent previously informed. In Europe, such approach to the issue, had been developed only some years later. In the “Principles of European medical ethics”, the letter signed by 12 countries of the European Community at the conference about the professional medical orders of 1987 (but also see the version of 1982), in which are inspired substantially all the current deontological codes, there it emphasizes the need to provide to the patient a proper information about the effects and the foreseen consequences from the therapy, before requesting their consent.

³⁷ Cf. Civil Appeal, Section III, ruling n. 18334/2013, according to which, the physician has the obligation to provide all the possible information to the patient regarding the medical treatment care or the surgical intervention to be performed, that is why the patient is submitted, in order for him to sign a non-generic module from which it would be possible to deduct with certainty the acquisition in an comprehensive way by the patient of such information: from it, it is derived that the surgeon does not comply with the obligation granted to him, when he does not provide the patient, in a complete and comprehensive way, all the information scientifically possible about the surgical intervention he tries to perform, and above all the risks/benefits balance of the intervention.

³⁸ Cf. regarding this point, A., VALLINI ^[42]. The step from the consent principle to the informed consent is also fundamental, from the cultural point of view, from the moment that indicates the acquisition of the awareness of the patient’s centrality in the treatment path. In Italy, a total judicial acknowledgement of the need for a proper previous information, as a requirement of validity of the consent, it has been had only since the beginning of the 90’s, thanks to the important jurisprudence action in this way, and to the rise of standard specific previsions such as the one in the Law 107 of 1990 regarding transfusion activities, or of the project from Law 230 of 1995, with respect to ionizing radiation.

³⁹ It is demonstrated that Civil Appeal, Section III, ruling n. 364, had established criteria of general extent by declaring that: «the validity of a consent is subjected to the information provided by the professional from whom it is required, about the benefits, the various modalities in general, about the several operation modalities, and about the foreseeable risks (even the so small ones, that they can make a serious impact on the physical conditions, or on life which is the supreme good itself) of the therapeutic intervention -information that must be effective and correct- and, in the case that the patient himself is the one who requested a surgery, by its nature, complex and performed by a team, the assumption or presumption of a consent to all the preparatory and successive interventions, jointly with the intervention itself, does not absolve the medical personnel responsible, who has to inform also, about these operational phases ( in specific concrete cases such as the related to the various anesthetic methods that could be used, their execution modalities and to their degree of risk), in such a way that the physician’s technical decision should happen after a proper information is provided, and with specific consent of the interested party». In the grounds of the ruling, The Supreme Court had made a pause on the content of the duty of information, where the purpose is, to allow the patient to make a conscious decision through a balance between advantages and risks of the chosen treatment, and certainly not to provide a detailed scientific explanation of the benefits: «In particular, in the area of the surgical interventions, the duty of information includes the scope of the intervention, the unavoidable difficulties, the expected effects, and the eventual risks, in a way they would be able to put the patient in a condition to decide about the appropriateness to proceed with the intervention, or to cancel it, by means of a balance between advantages and risks. The obligation applies to the foreseeable risks, and not so to the abnormal results, in the limit of the fortuitous facts, or as it is said, the acts of God, that are not assumed relevant, according to ID QUOD PLERUMQUE ACCIDIT (what it had mainly or in its majority happened), having to recognize that, the physician must balance the demand for information with the need to avoid that the patient, by any very remote chance, should decide to cancel to submit himself also, to a trivial intervention. The importance of the interests and goods which are at stake, for the present purpose, assumes relevance, none the less not being allowed, by a mere statistical calculation, that the patient would not be aware of the risks, even if they are small or so reduced, that would impact on his physical condition, or even, about the supreme good of life. Moreover, the obligation for providing information extends to, the specific risks related to certain alternative decisions, in a way that the patient, with the technical-scientific help of the physician, could bend for one or another of the possible decisions, by means of a conscious assessment of the corresponding risks, and the related advantages. From another point of view, it is well known that, in relatively complex interventions, especially the ones involving team work, it is currently normal that, they would present in their various phases, clear and specific risks. In a way, those phases assume their own management autonomy, and in turn they themselves give room to diversified operative decisions, even though, each one of them presents diverse risks. The obligation for information thus enhances, and it extends also to such phases and their corresponding risks as well as to the foreseen risks, but not to abnormal results, in the limit of what it is fortuity, […], without ignoring that the physician must balance the demand for information, with the need to avoid that the patient, in a very remote case, would also avoid to submit himself to a trivial intervention». Also the Medical Deontology Code addresses the information problematic, stating I Article 33, the physician’s obligation duty, to provide the patient with the best, essential, and thorough information that must correspond to the cultural level, the patient’s moodiness, and to the intellectual capabilities of the patient, without any unnecessary specification regarding the scientific data involved: the information must cover the diagnosis, the prognosis, the therapeutic perspectives, and of the true consequences of the therapy and of the non-therapy. The eventual will of the assisted person of not being informed must be documented. As a guaranty of the physicians duty to respect also such patient’s desire, without incurring in any responsibility whatsoever.

⁴⁰Cf. Civil Appeal, Section III, ruling n. 2847/2010.

⁴¹Cf. Civil Appeal, SectionIII, ruling n. 27751/2013.

⁴² Cf. Civil Appeal, Section III, ruling n. 4540/2016, among others. Risk management, understood both as a set of reduction modalities of the probability to verify clinical mistakes, as well as the necessary modalities for its management, in the unfortunate case that they should appear, must completely become an integral part of the process of organizational improvement of health, as it also is prescribed by the Medical Deontology Code of 2014 (Article 14), for which the physician “…for the purpose of guaranteeing the most ideal safety conditions of the patient …” it is called to contribute to the clinical risk management paying “…attention to the information process and to the consent achievement, as well as the communication of an unwanted event, and of its causes…”, and finally contributing to the “…revelation, signalization and the assessment of sentinel events, mistakes, quasi-mistakes and adverse events…”.

⁴³ Cf. Civil Appeal, Section III, ruling n.19229/2013, according to which in a personal relationship with the patient on the verge of diagnostic-therapeutic procedures, this one has the right to be provided with information about the benefits and risks or any alternative there off, of the proposed procedure in a language that must take into account the cultural degree of the assisted person (a clear language that foresees the particular subjective state, and the degree of specific knowledge). It does not have any influence on the illicit fact of the violation of informed consent, in that the treatment would have been performed in a correct way or not. In such perspective, what is emphasized is that the patient, due to the deficit of information, would have not been put into a condition to agree to the health treatment with a conscious will of its implications, performing in him, an injury of his dignity that marks his existence in the crucial moments of physical and psychic suffering. Also, Cf. Civil Appeal, Section III, ruling n. 16543/2011, and Civil Appeal Section II, ruling n. 20984/2012. Under these terms, Civil Appeal, Section III, ruling n. 5444/ 2006 stated: «The entirety or not of the treatment, does not assume any prominence, regarding the subsistence of the illicit for the violation of informed consent, which subsists for the simple reason that the patient, due to the deficit of information, hasn’t been set in a condition to agree to the health treatment, with a conscious will of its implications».

⁴⁴ Cf. Civil Appeal, Section III, ruling n.2847/2010, in which the Supreme Court has set the detriment of health, dependent on the treatment of health (reckless or not) and the violation of the patient’s right to be informed regarding the suggested treatment. For initial comments see A., RICCIO ^[43] y M., GORGONI ^[44].

⁴⁵ It is necessary that he who considers to be damaged in his right to self-determination, demonstrates the relevant circumstances that justify the compensation for the harm according to Articles 1223 and 2059 of the Civil Code, in accordance with «it is always necessary as a proof of the entity of the damage, that is to say the demonstration that the harm has produced an analogous type of loss as the one indicated by Article 1223 of the Civil Code, constituted by the diminishing or deprivation of a personal value (non-patrimonial) regarding which the compensation must be measured» (Cf. Milan Court, Section V civil, March 29, 2005, n. 3520). The issue of the non-patrimonial damage proof, and of the difficulties which imply, have escaped the judge’s attention, which have improved the distinction between the inherent damage in the violation (damage RE IPSA (the thing itself)), and the proof of damage RE IPSA (the thing itself): then they, have tried not to make coincident the damage with the violation of the interest, but to exonerate in any possible way, the damaged party, from the burden of demonstrating the existence of the prejudice (Cf. Civil Appeal, SS.UU. ruling n. 1338/2004).

⁴⁶ See, to go further into the issue, whatever has been written in an essay published in magazine “Federalismos” ^[14].

⁴⁷ This information is verifiable in the study performed by Costa G., MAIALE N., PASCOLO PRISCILLA, PEZZINO SERENELLA ^[45]: here, the authors provide information about a research whose objective has been constituted by a total sample of 207 patient, distributed in three hospitals in the center of Italy, and conformed by 117 men (equal to 56.52%) and 90 women (equal to 43.47%), all of them adults and from which 1.93% are in the age range of 18-30 years old (4 patients), 18.84% in the age range of 31-45 years old (39 patients), 32.85% in the age range of 46.65 years old (68 patients) and 46.37% represented by people older than 65 years of age (96 patients); recently operated (maximum 1-2 days) and all subjected to elective surgical interventions, that is to say performed in conditions of non- emergency (however 11 patients of the total of the sample equal to 5.31% claim to have been operated in an emergency procedure and 3 patients- equal to 1.44%even in an emergency procedure)

⁴⁸ From an AGENAS inquiry, has arisen that 11.8 percent of the total health expense, is precisely caused by the defensive medicine (amount variable between 10 and 13 thousand million euros). «The Defensive Medicine is … a worrying outcome of the increasing judicial controversy that burdens the medical class. From it is derived an ulterior disturbance of the professional practice… The Defensive Medicine takes place when the physicians prescribe tests, treatments or visits, or avoid patients or high risk treatments, mainly… for the purpose of reducing their own exposure to risk of accusations of “mala praxis”,… The Defensive Medicine… produces social damage due to the undue increase in health costs, already very high» (Fiori A., La medicina legale difensiva. Editoriale ^[46]).

⁴⁹ Under this perspective, the physician-patient relationship, looks like an ordinary commercial relationship regulated by the law according to precise standards of professional integrity (expertise, truth, faithfulness to facts) and the patient becomes an ordinary client, a common consumer, whereas the physician, as a rightful counterpart, limits himself to put him under conditions to be able to choose (without even worrying for the fact that he would be effectively able to perform it right); the so called defensive medicine, is the one that «is verified when the physicians prescribe test, diagnostic procedures or visits, or else, avoiding patients or high risk treatments, mainly (even not exclusively) to reduce their exposure to a liability trial for malpractice». The definition was elaborated in 1994 by the OTA, Office of Technology Assessment, USA Congress. About the issue, it is interesting to read a monography by F., LIPAROTI ^[47].

⁵⁰ Always taking into account all what has emerged in the mentioned research ^[44], 56% of the interviewed has declared that the used language, in the information phase was «very understandable» while 33% said «fairly understandable».

⁵¹ According to E., SGRECCIA [⁴⁸, p.1], it is not «desirable to go on a purely contractual line: the impossibility to immediately translate the health relationship in terms of the agreement between the specialist and the patient derived from the existential significance of the sickness, and its ethical and anthropological meaning».

⁵² As a proof of it, see whatever it happens, nowadays, in the telemedicine case.

⁵³ Cf. S., SPINSANTI [¹³, p. 92].

⁵⁴ The rise and discovery of a sickness, that is not known how to diagnose and face it, writes S. Orefice [⁴⁹, p. 3] «it already disables the mind […]. Desperation an be already reduced knowing that there will be a physician capable of helping».

⁵⁵ This way writes E., SGRECCIA [⁴⁸, p. 22].

⁵⁶ We ask ourselves if, in face of a so evidently “passive” attitude by the physician, he himself should be, could still be considered as an active part of the obligatory relationship, or else, reviewed the characteristics, already, of mere material executor of somebody else’s will.

⁵⁷ Cf. a miscellaneous work cured by G., PASINELLI [⁵⁰, p. 55].

⁵⁸All this impacts in the considerations of the body, which transforms into an object to be modified and at the service of his own desires. About this issue declare: A., SANTOSUOSSO ^[51], P., VERONESSI ^[52], S., RODOTÀ ^[53], R., ROMBOLI ^[54].

⁵⁹ «Contemporaty culture has frequently denounced the limits of the medical paternalism in the name of the patient’s autonomy. To answer to the possible abuses of the medical paternalism appealing only to the principal of autonomy, does not help to rebalance the relationship physician-patient, but it also even seems to condemn it to a legal unrest […] ». This way writes E. Sgreccia [⁴⁸, p. 1]. He is clearly referring to, in this case, to the esthetic surgery operations, among others, relative to which it is allowed to refer to whatever has been written in other occasions in this magazine ^[55].