Profiles in terms of medico-legal damage to death

Aniello Maiese
2014 Prevention & Research  
This article contains several judgments of the Court of Cassation focusing on the various matters that arise following the death of a subject, caused by an unlawful act committed by someone else, not only in the medical field, but above all in the juridical one. The ultimate goal is to analyze and clarify what are the various items of damage compensation due to the secondary victims of the offense, to the disruption that the event brought in their lives, to pecuniary and non-pecuniary damages
more » ... pecuniary damages jure proprio, as well as to the damage directly inflicted to the now dead person; well defining, furthermore, the distinction between terminal, catastrophic and thanatological biological damage, transferable to the heirs jure hereditatis. Specifically, as inherent jure proprio profile, it is clearly apparent how due is to the close relative of a person who has suffered fatal injuries, in addition to compensation for a recognized possible pecuniary damage, also the compensation for the nonpecuniary damage suffered following such event, to be regarded, for the purposes of the liquidation of the compensation thereof, the state of suffering (or state of anguish) even in the terms of his degeneration in objective relational profiles. Such damage, however, even in the case of lesions to the values of the person, should not be considered in re ipsa, since thereby the function of the related compensation would result denatured, because it would be granted not following the actual assessment, but rather as private penalty of an harmful behavior, that, instead, has to be proved by the injured in accordance with the general rule pursuant to art. 2697 c.c. Conversely with regard to the other profile (jure hereditatis), it becomes relevant the situation where, in the lapse of time between the lesion and the death, the deceased has acquired an autonomous right to the damage compensation in his own assets, for which the heirs will be able to act, within the limits of their shares. Therefore, it is clear that we need to go and verify which damages the victim suffered are claimable by inheritance by the relatives, but not regardless of the analysis of the terminal biological damage, or the catastrophic damage and the thanatological one. In this regard, the jurisprudence states that, in the event of physical injury with lethal outcome, a biological damage compensable for the benefit of the victim, transmissible to the heirs, is configurable only if the death occurred after a noticeable period of time, so that an actual impairment of the physical and psychological integrity of the injured subject can concretely be configured, and not when death supervenes either at once or shortly after the event, since this would not be the maximum possible lesion of the right to health, but of a different legal right, namely the right to life. KEY WORDS: terminal biological damage, catastrophic damage, thanatological damage.
doi:10.11138/per/2014.3.2.051 fatcat:2owbabsy5jbkbg5qmye5lejzfe