Doveri del medico e autodeterminazione del paziente: tra diritto privato e diritto pubblico

Abstract

The essay addresses the issue of balancing the patient’s right to self-determination with the legal and ethical duties of physicians, in light of the difficult decisions public authorities are often required to make in the field of healthcare. It highlights how, on the one hand, technological progress, and on the other, the evolving interpretation of the right to health as a right to existential well-being and the pursuit of personal fulfilment, have led to demands that increasingly depart from the traditional model of disease-oriented treatment. Such requests, although personally meaningful, do not always warrant legal protection and are therefore subject to evaluation by physicians and the public health service. The essay further examines recent national and European case law on compensation for the violation of the patient’s autonomy in therapeutic choices influenced by ethical or religious beliefs (such as the refusal of blood transfusions by Jehovah’s Witnesses). Based on a critical analysis of this jurisprudence, the author argues that claims for damages arising from non-consensual or expressly refused medical interventions - which nevertheless resulted in health improvement or even the preservation of life - should be reduced or dismissed by the courts in application of the principle of compensatio lucri cum damno.