DI GEREMIA ROMANO

Abstract – Unwanted birth medical liability, whether due to diagnostic error or failure to comply with the information requirements, has been affected by a progressive widening of the area of damages and legitimate assets, until the United Sections of the Cassation intervened to remedy a contrast between the pronouncements of the Third Chamber, issued between 2004 and 2012. What seemed an evolution, in the service of the maximum realization of constitutional values, has undergone a foreseeable arrest with greater respect for the principle of legality. In fact, the thesis which considered the injury of the self-determination of the pregnant woman, in relation to abortion, as a mediated cause of the child’s illness, as avoidable if it had not been born, led to an overlap of plans between the prerequisites for the birth of the right and the interest protected. The evolution presented common traits with other developments of medical liability, in the direction of the maximum protection of the good health, by the use of the judicial precomprehension. Reconstruction tends to preserve the validity of legal reasoning informed to that model of argument.

Keywords – medical liabilty, diagnostic error, unwanted birth, legal information, abortion.

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