Il diritto è giurisprudenza: «Del doman non v’è certezza». Commento a: Tribunale di Milano, sez. I civ., sentenza 17 luglio 2014 (Est. Patrizio Gattari)

Abstract

[Law is jurisprudence: “there is no certainty of tomorrow”. Comment to: judgment of the Court of Milan, July 17th 2014]

Today, more and more evidence is perfected a peculiar creation process of law: law is jurisprudence!

The judgment of the Court of Milan, here under review, sets out a direction completely contrasting with the well-established theory of liability of “social contact” in the health sector.

The point at issue? The same for some time, now: the Decree Balduzzi revived the responsibility model in force before the landmark ruling in 1999, or only represented a failure of the Legislator?

The jurisprudential debate arises from the interpretation of Article 3 of Law 189 of November 8, 2012, the conversion of D.L. September 13, 2012 n. 158, the notorius “Decree Balduzzi”.

The Court of Milan promotes the interpretation that the second part of Article 3 of Law n. 189/2012, would change the “living law”, making a choice in line with the purpose of containing the costs of compensation of public health and to remedy the phenomenon of so-called “defensive medicine”, “throwing to the nettles” the usability in practice of the theory of social contact.

The position taken by the Court of Milan cannot be shared: the reference to art. 2043 of the Civil Code must be interpreted as a failure of the Legislator, too worried about reducing health care costs. We must therefore continue to apply the model of liability of art. 1218 of the Civil Code, and then the theory of social contact. Anyway: posterity will judge!