La nutrizione-idratazione artificiale è terapia? All'interfaccia tra scienza, diritto e bioetica, il fine vita in Italia, secondo una prospettiva di comunicazione della scienza post-accademica e Science&Technologies Studies (STS)

The question “artificial nutrition and hydration (ANH) is therapy or not?” is one of the key point of end-of-life issues in Italy, since it was (and it is also nowadays) a strategic and crucial point of the Italian Bioethics discussion about the last phases of human life: determining if ANH is therapy implies the possibility of being included in the list of treatments that could be mentioned for refusal within the living will document. But who is entitled to decide and judge if ANH is a therapy or not? Scientists? The Legislator? Judges? Patients? This issue at first sight seems just a matter of science, but at stake there is more than a scientific definition. According to several scholars, we are in the era of post-academic Science, in which Science broaden discussion, production, negotation and decision to other social groups that are not just the scientific communities. In this process, called co-production, on one hand scientific knowledge derives from the interaction between scientists and society at large. On the other hand, science is functional to co-production of social order. The continuous negotation on which science has to be used in social decisions is just the evidence of the mirroring negotation for different way to structure and interpret society. Thus, in the interaction between Science and Law, deciding what kind of Science could be suitable for a specific kind of Law, envisages a well defined idea of society behind this choice. I have analysed both the legislative path (still in progress) in the living will act production in Italy and Eluana Englaro’s judicial case (that somehow collapsed in the living will act negotiation), using official documents (hearings, texts of the official conference, committees comments and ruling texts) and interviewing key actors in the two processes from the science communication point of view (who talks in the name of science? Who defines what is a therapy? And how do they do?), finding support on the theoretical framework of the Science&Technologies Studies (S&TS).

Quantifying the Economics of Medical Malpractice - A View from a Civil Law Perspective

Life is full of uncertainties. Legal rules should have a clear intention, motivation and purpose in order to diminish daily uncertainties. However, practice shows that their consequences are complex and hard to predict. For instance, tort law has the general objectives of deterring future negligent behavior and compensating the victims of someone else's negligence. Achieving these goals are particularly difficult in medical malpractice cases. To start with, when patients search for medical care they are typically sick in the first place. In case harm materializes during the treatment, it might be very hard to assess if it was due to substandard medical care or to the patient's poor health conditions. Moreover, the practice of medicine has a positive externality on the society, meaning that the design of legal rules is crucial: for instance, it should not result in physicians avoiding practicing their activity just because they are afraid of being sued even when they acted according to the standard level of care. The empirical literature on medical malpractice has been developing substantially in the past two decades, with the American case being the most studied one. Evidence from civil law tradition countries is more difficult to find. The aim of this thesis is to contribute to the empirical literature on medical malpractice, using two civil law countries as a case-study: Spain and Italy. The goal of this thesis is to investigate, in the first place, some of the consequences of having two separate sub-systems (administrative and civil) coexisting within the same legal system, which is common in civil law tradition countries with a public national health system (such as Spain, France and Portugal). When this holds, different procedures might apply depending on the type of hospital where the injury took place (essentially whether it is a public hospital or a private hospital). Therefore, a patient injured in a public hospital should file a claim in administrative courts while a patient suffering an identical medical accident should file a claim in civil courts. A natural question that the reader might pose is why should both administrative and civil courts decide medical malpractice cases? Moreover, can this specialization of courts influence how judges decide medical malpractice cases? In the past few years, there was a general concern with patient safety, which is currently on the agenda of several national governments. Some initiatives have been taken at the international level, with the aim of preventing harm to patients during treatment and care. A negligently injured patient might present a claim against the health care provider with the aim of being compensated for the economic loss and for pain and suffering. In several European countries, health care is mainly provided by a public national health system, which means that if a patient harmed in a public hospital succeeds in a claim against the hospital, public expenditures increase because the State takes part in the litigation process. This poses a problem in a context of increasing national health expenditures and public debt. In Italy, with the aim of increasing patient safety, some regions implemented a monitoring system on medical malpractice claims. However, if properly implemented, this reform shall also allow for a reduction in medical malpractice insurance costs. This thesis is organized as follows. Chapter 1 provides a review of the empirical literature on medical malpractice, where studies on outcomes and merit of claims, costs and defensive medicine are presented. Chapter 2 presents an empirical analysis of medical malpractice claims arriving to the Spanish Supreme Court. The focus is on reversal rates for civil and administrative decisions. Administrative decisions appealed by the plaintiff have the highest reversal rates. The results show a bias in lower administrative courts, which tend to focus on the State side. We provide a detailed explanation for these results, which can rely on the organization of administrative judges career. Chapter 3 assesses predictors of compensation in medical malpractice cases appealed to the Spanish Supreme Court and investigates the amount of damages attributed to patients. The results show horizontal equity between administrative and civil decisions (controlling for observable case characteristics) and vertical inequity (patients suffering more severe injuries tend to receive higher payouts). In order to execute these analyses, a database of medical malpractice decisions appealed to the Administrative and Civil Chambers of the Spanish Supreme Court from 2006 until 2009 (designated by the Spanish Supreme Court Medical Malpractice Dataset (SSCMMD)) has been created. A description of how the SSCMMD was built and of the Spanish legal system is presented as well. Chapter 4 includes an empirical investigation of the effect of a monitoring system for medical malpractice claims on insurance premiums. In Italy, some regions adopted this policy in different years, while others did not. The study uses data on insurance premiums from Italian public hospitals for the years 2001-2008. This is a significant difference as most of the studies use the insurance company as unit of analysis. Although insurance premiums have risen from 2001 to 2008, the increase was lower for regions adopting a monitoring system for medical claims. Possible implications of this system are also provided. Finally, Chapter 5 discusses the main findings, describes possible future research and concludes.

Regulating Vertical Agreements: A Comparative Law & Economics analysis of Brazil and Europe

This PhD thesis discusses antitrust enforcement of anti-competitive vertical agreements in Europe and in Brazil from an institutional perspective. It considers both the evolution of the legal framework and the application of the existing policies, with the analysis of case studies. The research highlights the main challenges of the current approaches adopted by the competition authorities in these jurisdictions and formulates specific proposals for future improvements. Because the Brazilian competition rules were originally inspired by the European legal framework, this thesis also summarizes the contemporary discussions regarding comparative law and the efficiency of transplanting laws and good practices. In a Law & Economics perspective, vertical agreements have always been a paradoxical topic and constitute one of the most dynamic disputes for antitrust enforcement. The reason for that concern is the fact that those contracts among companies are complex in nature. Taking into account this background, the thesis provides an original analysis of the pro- and anti-competitive effects of vertical agreements, based on the classical literature of Law & Economics. One of the novelties of the research is the extension of the economic analysis of vertical agreements to also consider new forms of contractual abuses in the context of digital markets, such as the contractual restrictions that are being put I practice in e-commerce platforms. The international comparative approach focuses on the Brazilian and European experiences, and opens up a reflection about the policy recommendations applied to several countries with similar economic and institutional realities.

Algorithmic business and EU law on fair trading

This thesis studies how commercial practice is developing with artificial intelligence (AI) technologies and discusses some normative concepts in EU consumer law. The author analyses the phenomenon of 'algorithmic business', which defines the increasing use of data-driven AI in marketing organisations for the optimisation of a range of consumer-related tasks. The phenomenon is orienting business-consumer relations towards some general trends that influence power and behaviors of consumers. These developments are not taking place in a legal vacuum, but against the background of a normative system aimed at maintaining fairness and balance in market transactions. The author assesses current developments in commercial practices in the context of EU consumer law, which is specifically aimed at regulating commercial practices. The analysis is critical by design and without neglecting concrete practices tries to look at the big picture. The thesis consists of nine chapters divided in three thematic parts. The first part discusses the deployment of AI in marketing organisations, a brief history, the technical foundations, and their modes of integration in business organisations. In the second part, a selected number of socio-technical developments in commercial practice are analysed. The following are addressed: the monitoring and analysis of consumers’ behaviour based on data; the personalisation of commercial offers and customer experience; the use of information on consumers’ psychology and emotions, the mediation through marketing conversational applications. The third part assesses these developments in the context of EU consumer law and of the broader policy debate concerning consumer protection in the algorithmic society. In particular, two normative concepts underlying the EU fairness standard are analysed: manipulation, as a substantive regulatory standard that limits commercial behaviours in order to protect consumers’ informed and free choices and vulnerability, as a concept of social policy that portrays people who are more exposed to marketing practices.