La responsabilità civile nelle attività sanitarie

La materia della responsabilità medico-sanitaria è stata interessata nell’ultimo decennio da significative innovazioni, innescate da diversi fattori, quali gli eccezionali progressi scientifici e tecnologici, l’influenza dei diritti stranieri e, in particolare, quello di fonte comunitaria. Tale fenomeno trascende il rapporto diretto medico-paziente e coinvolge la struttura sanitaria e la dimensione organizzativa della stessa. Sintomatica di tali innovazioni è la profonda evoluzione terminologica. Attualmente, infatti, si fa riferimento alla responsabilità medica o medico-sanitaria e non più alla responsabilità del medico, in quanto non può trascurarsi l’indispensabile apporto del personale infermieristico, delle ostetriche, degli assistenti sanitari e dei tecnici delle diverse branche della medicina. Si assiste, pertanto, ad un fenomeno di «spersonalizzazione» ed aggravamento della complessità dell’attività sanitaria: al trattamento propriamente diagnostico e terapeutico, si affiancano altre attività, di tipo informativo, alberghiero, assistenziale, così come nuove tipologie di trattamenti, quali la chirurgia estetica e ricostruttiva, il potenziamento fisico e muscolare, la sterilizzazione, la modificazione dei caratteri sessuali esterni. Ultimamente, poi, l’attenzione si è spostata sul destinatario dell’attività medica e, in particolar modo, sul consenso informato ai trattamenti sanitari e, soprattutto, alle modalità in cui lo stesso viene prestato. Al contempo, sono emersi aspetti di diritto costituzionale, attinenti alla tutela della persona, dei dati personali e sensibili, al diritto alla salute, concepito come diritto dell’essere umano in quanto tale, a prescindere dal requisito della cittadinanza, di diritto amministrativo, riguardanti l’organizzazione delle strutture sanitarie, di diritto penale e di deontologia professionale. All’incedere dei progressi scientifici e tecnologici raggiunti, tuttavia, corrisponde l’accanito desiderio di rivalsa in caso di fallimento delle cure e dei trattamenti o di esiti nefasti degli stessi, la quale ha condotto ad una sensibile accentuazione dei giudizi di responsabilità in campo medico. Basti pensare che, nell’ultimo decennio, i processi civili sono addirittura triplicati per il concatenarsi di molteplici concause: l’aumento delle patologie curate, l’evoluzione qualitativa dei mezzi di cura, la sensibilizzazione delle associazioni a difesa dei diritti del malato, l’allungamento della vita media dell’uomo, la pressione dei mass-media, la maggior consapevolezza dei propri diritti da parte del cittadino, la stessa evoluzione della responsabilità civile e delle sue funzioni. Ciò ha comportato, tra l’altro, un certo grado di uniformità nella disciplina applicabile agli illeciti, a prescindere dal titolo contrattuale o extracontrattuale della responsabilità.

La responsabilità civile da prodotto farmaceutico

Il tema della ricerca ha riguardato preliminarmente la definizione di farmaco descritta nel d.lgs. n. 219 del 2006 (Codice dei farmaci per uso umano). Oltre al danno prodotto da farmaci, la ricerca ha approfondito anche la tutela ex ante ed ex post riguardante la produzione di dispositivi medici (Direttiva della Comunità Economica Europea n. 42 del 1993 e Direttiva della Comunità Economica Europea n. 374 del 1985). E’ stato necessario soffermarsi sull’analisi del concetto di precauzione per il quale nell’ambito di attività produttive, come quelle che cagionano inquinamento ambientale, o “pericolose per la salute umana” come quelle riguardanti la produzione di alimenti e farmaci, è necessario eliminare i rischi non conosciuti nella produzione di questi ultimi al fine di garantire una tutela completa della salute. L’analisi della Direttiva della Comunità Economica Europea n. 374 del 1985 nei suoi aspetti innovativi ha riguardato l’esame dei casi di danno da farmaco (Trib. Roma, 20 Giugno 2002, Trib. Roma 27 Giugno 1987, Trib. Milano 19 Novembre 1987, Cassazione Civile n. 6241 del 1987): profilo critico è quello riguardante la prova liberatoria, mentre l'art. 2050 prevede che «si debbano adottare tutte le misure necessarie per evitare il danno», l'art. 118, lett. e), c. cons.) prevede una serie di casi di esonero di responsabilità del produttore (tra cui il rischio di sviluppo). Dall'analisi emerge poi la necessità da parte del produttore di continuo utilizzo del duty to warn (Art. 117 del Codice del Consumo lett. A e B ): esso consiste nel dovere continuo di informazione del produttore tramite i suoi rappresentanti e il bugiardino presente nelle confezioni dei farmaci. Tale dovere è ancor più importante nel caso della farmacogenetica, infatti, al fine di evitare reazioni avverse nel bugiardino di alcuni farmaci verrà prescritta la necessità di effettuare un test genetico prima dell’assunzione.

La responsabilità del vettore terrestre nel trasporto di cose per conto terzi: riflessi assicurativi.

La ricerca ha ad oggetto l’analisi della disciplina della responsabilità del vettore terrestre di merci per conto terzi ed i riflessi che detta disciplina ha avuto modo di svilupparsi nel mercato assicurativo. L’attenzione è stata rivolta al contratto di trasporto di cose in generale, seguendone la disciplina codicistica e le evoluzioni legislative intervenute. Particolare rilievo assume la novella apportata all’art. 1696 c.c., introdotta dall’art. 10 del Dlgs. 286/2005, grazie alla quale l’ordinamento italiano ha potuto codificare il limite di indennizzo dovuto dal vettore nell’ipotesi di colpa lieve, L’introduzione del limite legale di indennizzo per le ipotesi di responsabilità per perdita o avaria della merce trasportata ha generato nel mondo assicurativo interessanti reazioni. L’elaborato esamina anche l’evoluzione giurisprudenziale formatisi in tema di responsabilità vettoriale, evidenziando il crescente rigore imposto dalla giurisprudenza fondato sul principio del receptum. Tale fenomeno ha visto immediata reazione nel mercato assicurativo il quale, sulla base di testi contrattuali non dissimili tra le diverse compagnie di assicurazioni operanti sul mercato domestico e che traevano origine dai formulari approvati dall’ANIA, ha seguito l’evoluzione giurisprudenziale apportando significative restrizioni al rischio tipico previsto dalle coperture della responsabilità civile vettoriale. La ricerca si è poi focalizzata sull’esame delle più comuni clausole contemplate dalle polizze di assicurazioni di responsabilità civile e sul loro significato alla luce delle disposizioni di legge in materia. Tale analisi riveste preminente interesse poiché consente di verificare in concreto come l’assicurazione possa effettivamente costituire per l’impresa di trasporto non tanto un costo bensì una opportunità di risparmio da un lato ed un modello comportamentale, sebbene indotto, dall’altro lato per il raggiungimento di quei canoni di diligenza che qualsiasi operatore del settore dovrebbe tenere durante l’esecuzione del trasporto ed il cui venir meno determina, come detto, sensibili effetti pregiudizievoli di carattere economico.

Inadempimento e ripartizione dell'onere probatorio

L'interesse per il tema dell'onere della prova nell'inadempimento contrattuale è giustificato dalla circostanza che il noto intervento delle Sezioni Unite in materia, al quale originariamente si è pensato di attribuire una portata indifferenziata e assoluta, non ha avuto l'effetto di porre fine ai numerosi contrasti interpretativi. Al contrario, lo stesso ha determinato il sorgere di nuove incertezze e profili problematici, subendo, peraltro, continue smentite in diversi settori della responsabilità civile. Lo scopo della presente indagine è stato quello di verificare in quali contesti la regola fissata dalla Cassazione venisse applicata e in quali disattesa, procedendo, quindi, ad accertare la modulazione dell'onere della prova in alcuni settori considerati emblematici. Si è, così, tentato di individuare le ragioni della limitazione dell'indirizzo in parola, nonché i criteri in base ai quali determinare l'allocazione dell'onere della prova.

SUPERFUND: AN ANALYSIS OF IMPLEMENTATION FAILURE (CERCLA, HEALTH LAW POLICY)

In December, 1980, following increasing congressional and constituent-interest in problems associated with hazardous waste, the Comprehensive Environmental Recovery, Compensation and Liability Act (CERCLA) was passed. During its development, the legislative initiative was seriously compromised which resulted in a less exhaustive approach than was formerly sought. Still, CERCLA (Superfund) which established, among other things, authority to clean up abandoned waste dumps and to respond to emergencies caused by releases of hazardous substances was welcomed by many as an important initial law critical to the cleanup of the nation's hazardous waste. Expectations raised by passage of this bill were tragically unmet. By the end of four years, only six sites had been declared by the EPA as cleaned. Seemingly, even those determinations were liberal; of the six sites, two were identified subsequently as requiring further cleanup.^ This analysis is focused upon the implementation failure of the Superfund. In light of that focus, discussion encompasses development of linkages between flaws in the legislative language and foreclosure of chances for implementation success. Specification of such linkages is achieved through examination of the legislative initiative, identification of its flaws and characterization of attendant deficits in implementation ability. Subsequent analysis is addressed to how such legislative frailities might have been avoided and to attendant regulatory weaknesses which have contributed to implementation failure. Each of these analyses are accomplished through application of an expanded approach to the backward mapping analytic technique as presented by Elmore. Results and recommendations follow.^ Consideration is devoted to a variety of regulatory issues as well as to those pertinent to legislative and implementation analysis. Problems in assessing legal liability associated with hazardous waste management are presented, as is a detailed review of the legislative development of Superfund, and its initial implementation by Gorsuch's EPA. ^

50 Years Ago We Marched: What began on the grounds of Lincoln University, ended on the steps of the Alabama State Capitol

LINCOLN UNIVERSITY - On March 25, 1965, a bus loaded with Lincoln University students and staff arrived in Montgomery, Ala. to join the Selma march for racial and voting equality. Although the Civil Rights Act of 1964 was in force, African-Americans continued to feel the effects of segregation. The 1960s was a decade of social unrest and change. In the Deep South, specifically Alabama, racial segregation was a cultural norm resistant to change. Governor George Wallace never concealed his personal viewpoints and political stance of the white majority, declaring “Segregation now, segregation tomorrow, segregation forever.” The march was aimed at obtaining African-Americans their constitutionally protected right to vote. However, Alabama’s deep-rooted culture of racial bias began to be challenged by a shift in American attitudes towards equality. Both black and whites wanted to end discrimination by using passive resistance, a movement utilized by Dr. Martin Luther King Jr. That passive resistance was often met with violence, sometimes at the hands of law enforcement and local citizens. The Selma to Montgomery march was a result of a protest for voting equality. The Student Nonviolent Coordinating Committee (SNCC) and the Southern Christian Leadership Counsel (SCLC) among other students marched along the streets to bring awareness to the voter registration campaign, which was organized to end discrimination in voting based on race. Violent acts of police officers and others were some of the everyday challenges protesters were facing. Forty-one participants from Lincoln University arrived in Montgomery to take part in the 1965 march for equality. Students from Lincoln University’s Journalism 383 class spent part of their 2015 spring semester researching the historical event. Here are their stories: Peter Kellogg “We’ve been watching the television, reading about it in the newspapers,” said Peter Kellogg during a February 2015 telephone interview. “Everyone knew the civil rights movement was going on, and it was important that we give him (Robert Newton) some assistance … and Newton said we needed to get involve and do something,” Kellogg, a lecturer in the 1960s at Lincoln University, discussed how the bus trip originated. “That’s why the bus happened,” Kellogg said. “Because of what he (Newton) did - that’s why Lincoln students went and participated.” “People were excited and the people along the sidewalk were supportive,” Kellogg said. However, the mood flipped from excited to scared and feeling intimidated. “It seems though every office building there was a guy in a blue uniform with binoculars standing in the crowd with troops and police. And if looks could kill me, we could have all been dead.” He says the hatred and intimidation was intense. Kellogg, being white, was an immediate target among many white people. He didn’t realize how dangerous the event in Alabama was until he and the others in the bus heard about the death of Viola Liuzzo. The married mother of five from Detroit was shot and killed by members of the Ku Klux Klan while shuttling activists to the Montgomery airport. “We found out about her death on the ride back,” Kellogg recalled. “Because it was a loss of life, and it shows the violence … we could have been exposed to that danger!” After returning to LU, Kellogg’s outlook on life took a dramatic turn. Kellogg noted King’s belief that a person should be willing to die for important causes. “The idea is that life is about something larger and more important than your own immediate gratification, and career success or personal achievements,” Kellogg said. “The civil rights movement … it made me, it made my life more significant because it was about something important.” The civil rights movement influenced Kellogg to change his career path and to become a black history lecturer. Until this day, he has no regrets and believes that his choices made him as a better individual. The bus ride to Alabama, he says, began with the actions of just one student. Robert Newton Robert Newton was the initiator, recruiter and leader of the Lincoln University movement to join Dr. Martin Luther King’s march in Selma. “In the 60s much of the civil rights activists came out of college,” said Newton during a recent phone interview. Many of the events that involved segregation compelled college students to fight for equality. “We had selected boycotts of merchants, when blacks were not allowed to try on clothes,” Newton said. “You could buy clothes at department stores, but no blacks could work at the department stores as sales people. If you bought clothes there you couldn’t try them on, you had to buy them first and take them home and try them on.” Newton said the students risked their lives to be a part of history and influence change. He not only recognized the historic event of his fellow Lincolnites, but also recognized other college students and historical black colleges and universities who played a vital role in history. “You had the S.N.C.C organization, in terms of voting rights and other things, including a lot of participation and working off the bureau,” Newton said. Other schools and places such as UNT, Greenville and Howard University and other historically black schools had groups that came out as leaders. Newton believes that much has changed from 50 years ago. “I think we’ve certainly come a long way from what I’ve seen from the standpoint of growing up outside of Birmingham, Alabama,” Newton said. He believes that college campuses today are more organized in their approach to social causes. “The campus appears to be some more integrated amongst students in terms of organizations and friendships.” Barbara Flint Dr. Barbara Flint grew up in the southern part of Arkansas and came to Lincoln University in 1961. She describes her experience at Lincoln as “being at Lincoln when the world was changing.“ She was an active member of Lincoln’s History Club, which focused on current events and issues and influenced her decision to join the Selma march. “The first idea was to raise some money and then we started talking about ‘why can’t we go?’ I very much wanted to be a living witness in history.” Reflecting on the march and journey to Montgomery, Flint describes it as being filled with tension. “We were very conscious of the fact that once we got on the road past Tennessee we didn’t know what was going to happen,” said Flint during a February 2015 phone interview. “Many of the students had not been beyond Missouri, so they didn’t have that sense of what happens in the South. Having lived there you knew the balance as well as what is likely to happen and what is not likely to happen. As my father use to say, ‘you have to know how to stay on that line of balance.’” Upon arriving in Alabama she remembers the feeling of excitement and relief from everyone on the bus. “We were tired and very happy to be there and we were trying to figure out where we were going to join and get into the march,” Flint said. “There were so many people coming in and then we were also trying to stay together; that was one of the things that really stuck out for me, not just for us but the people who were coming in. You didn’t want to lose sight of the people you came with.” Flint says she was keenly aware of her surroundings. For her, it was more than just marching forward. “I can still hear those helicopters now,” Flint recalled. “Every time the helicopters would come over the sound would make people jump and look up - I think that demonstrated the extent of the tenseness that was there at the time because the helicopters kept coming over every few minutes.” She said that the marchers sang “we are not afraid,” but that fear remained with every step. “Just having been there and being a witness and marching you realize that I’m one of those drops that’s going to make up this flood and with this flood things will move,” said Flint. As a student at Lincoln in 1965, Flint says the Selma experience undoubtedly changed her life. “You can’t expect to do exactly what you came to Lincoln to do,” Flint says. “That march - along with all the other marchers and the action that was taking place - directly changed the paths that I and many other people at Lincoln would take.” She says current students and new generations need to reflect on their personal role in society. “Decide what needs to be done and ask yourself ‘how can I best contribute to it?’” Flint said. She notes technology and social media can be used to reach audiences in ways unavailable to her generation in 1965. “So you don’t always have to wait for someone else to step out there and say ‘let’s march,’ you can express your vision and your views and you have the means to do so (so) others can follow you. Jaci Newsom Jaci Newsom came to Lincoln in 1965 from Atlanta. She came to Lincoln to major in sociology and being in Jefferson City was largely different from what she had grown up with. “To be able to come into a restaurant, sit down and be served a nice meal was eye-opening to me,” said Newsom during a recent interview. She eventually became accustomed to the relaxed attitude of Missouri and was shocked by the situation she encountered on an out-of-town trip. “I took a bus trip from Atlanta to Pensacola and I encountered the worse racism that I have ever seen. I was at bus stop, I went in to be served and they would not serve me. There was a policeman sitting there at the table and he told me that privately owned places could select not to serve you.” Newsom describes her experience of marching in Montgomery as being one with a purpose. “We felt as though we achieved something - we felt a sense of unity,” Newsom said. “We were very excited (because) we were going to hear from Martin Luther King. To actually be in the presence of him and the other civil rights workers there was just such enthusiasm and excitement yet there was also some apprehension of what we might encounter.” Many of the marchers showed their inspiration and determination while pressing forward towards the grounds of the Alabama Capitol building. Newsom recalled that the marchers were singing the lyrics “ain’t gonna let nobody turn me around” and “we shall overcome.” “ I started seeing people just like me,” Newsom said. “I don’t recall any of the scowling, the hitting, the things I would see on TV later. I just saw a sea of humanity marching towards the Capitol. I don’t remember what Martin Luther King said but it was always the same message: keep the faith; we’re going to get where we’re going and let us remember what our purpose is.” Newsom offers advice on what individuals can do to make their society a more productive and peaceful place. “We have come a long way and we have ways to change things that we did not have before,” Newsom said. “You need to work in positive ways to change.” Referencing the recent unrest in Ferguson, Mo., she believes that people become destructive as a way to show and vent anger. Her generation, she says, was raised to react in lawful ways – and believe in hope. “We have faith to do things in a way that was lawful and it makes me sad what people do when they feel without hope, and there is hope,” Newsom says. “Non-violence does work - we need to include everyone to make this world a better place.” Newsom graduated from Lincoln in 1969 and describes her experience at Lincoln as, “I grew up and did more growing at Lincoln than I think I did for the rest of my life.”

CERCLA: A Case Study of Local Government Involvement in the Decision-Making Process in Colorado

The Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, and the Superfund Amendments and Reauthorization Act (SARA) of 1986 strengthen roles of the community in the CERCLA process. Many layers of bureaucracy and the complexity of regulations make the implementation and enforcement of environmental policy a burdensome process. Local government, the public and private corporations have a critical role in the CERCLA decision-making process by implementing a comprehensive public participation process. This paper examines a case study in which a local Colorado health department implemented a successful public participation process in order to positively affect the remediation decision-making process.

Symposium on work zone traffic control. Proceedings.

Federal Highway Administration, Office of Implementation, Washington, D.C.

A guide to assessing minority and sex role stereotyping in elementary and secondary schools /

This annotated list was produced with funds made available through the Civil Rights Act of 1964, Title IV, Equal Educational Opportunity.

Title 38--United States code: Veterans' benefits. : January 3, 1973.

"Soldiers' and sailors' civil relief act of 1940, as amended": p. 311-330.

“Seismic cultural change?”: British media representations of same-sex ‘marriage’

The legal recognition of same-sex relationships is a contested terrain that has been hotly debated by feminists. This article provides a social constructionist analysis of the UK newspaper media coverage around the time of the introduction of the Civil Partnership Act (2004). In examining the 348 national newspaper coverage over a three month period (November 2005–January 2006) we highlight three prevalent, and conflicting, themes: ‘same-sex marriage becomes legal under the Civil Partnership Act’; ‘couples will not get full legal status’ and ‘marriage is a heterosexual business’. We discuss these media representations and argue that the heteronormativity of the coverage provided little space for more radical constructions of same-sex relationship recognition.

Commuter Airlines:Their Changing Role

In - Commuter Airlines: Their Changing Role – an essay by J. A. F. Nicholls, Transportation Coordinator, Department of Marketing and Environment, College of Business Administration, Florida International University, Nicholls initially observes: “The great majority of airline passenger miles flown in the United States are between large conurbations. People living in metropolitan areas may be quite unaware of commuter airlines and their role in our transportation system. These airlines are, however, communications lifelines for dwellers in small - and not so small - towns and rural areas. More germanely, commuter airlines have also developed a pivotal role vis-a-vis the major carriers in this country. The author discusses the antecedents of the commuter Airlines, their current role, and future prospects.” Huh; conurbations? Definition: [n.] a large urban area created when neighboring towns spread into and merge with each other In providing a brief history on the subject of commuter airlines, Nicholls states: “…there had been a sort of commuter airline as far back as 1926 when, for example, the Florida Airways Corporation provided flights between Jacksonville and Atlanta, Colonial Air Lines between New York and Boston, and Ford Air Transport from Detroit to Cleveland.” “The passage of the Civil Aeronautics Act in 1938 was pivotal in encouraging and developing a passenger orientation by the airlines…” Nicholls informs you. Nicholls provides for the importance of this act by saying: “The CAA was empowered to act “in the public interest and in accordance with the public convenience and necessity.” Only the CAA itself could determine what constituted the “public convenience and necessity.” Nobody, however, could provide air transportation for public purposes without a Certificate of Public Convenience and Necessity, dispensed by the CAA.” The author wants you to know that this all happens in the age of airline regulation; that is to say, pre de-regulation i.e. 1978. Airlines could not and did not act on their own behalf; their actions were governed by the regulating agency, that being the Civil Aeronautics Board [CAB], who administered the conditions set forth by the CAA. “In 1944 the CAB introduced a new category of service called feeder airlines to provide local service-short-haul, low density-for smaller communities. These carriers soon became known as air taxis since they operated as common carriers, without a regular schedule,” says Nicholls in describing the evolution of the service. In 1969 the CAB officially designated these small air carriers as commuter airlines. They were, and are subject to passenger limits and freight/weight restrictions. Nicholls continues by defining how air carriers are labeled and categorized post 1978; in the age of de-regulation.

Sexual Harassment:A Long-Dormant Demon

Because of its service nature, the hospitality industry is especially prone to cases of sexual harassment in the workplace, particularly from female employees. The author discusses Title VII of the Civil Rights Act of 1964 and the legal and moral implications of its guidelines for the industry.

MODERN SPORT COACHING AND THE LAW: IMPLICATIONS FOR COACH EDUCATION

Introduction
The intersection between the law of negligence and sport coaching in the UK is a developing area (Partington, 2014; Kevan, 2005). Crucially, since the law of negligence may be regarded as generally similar everywhere (Magnus, 2006), with the predominance of volunteer coaches in the UK reflective of the majority of countries in the world (Duffy et al., 2011), a detailed scrutiny of this relationship from the perspective of the coach uncovers important implications for coach education beyond this jurisdiction.  
Argumentation
Fulfilment of the legal duty of discharging reasonable care may be regarded as consistent with the ethical obligation not to expose athletes to unreasonable risks of injury (Mitten, 2013). More specifically, any ‘profession’ requiring ‘special skill or competence’ (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582), including the coaching of sport (e.g., Davenport v Farrow [2010] EWHC 550), requires a higher standard of care to be displayed than would be expected of the ordinary reasonable person (Lunney & Oliphant, 2013; Jones & Dugdale, 2010). For instance, volunteer coaches with no formal qualifications (e.g., Fowles v Bedfordshire County Council [1996] ELR 51) would be judged by this benchmark of professional liability (Powell & Stewart, 2012). Further, as the principles of coaching are constantly assessed and revised (Cassidy et al., 2009; Taylor & Garratt, 2010), so too is the legal standard of care required of coaches (Powell & Stewart, 2012). Problematically, ethical concerns may include coaches being unwilling to increase knowledge, abusive treatment of players and incompetence/inexperience (Haney et al., 1998). These factors accentuate coaches’ exposure to civil liability.
Implications
It is imperative that coaches have an awareness of this emerging intersection and develop a ‘proactive risk assessment lens’ (Hartley, 2010). In addition to supporting the professionalisation of sport coaching, coach education/CPD focused on the legal and ethical aspects of coaching (Duffy et al., 2011; Telfer, 2010; Haney et al., 1998) would enhance the safety and welfare of performers, safeguard coaches from litigation risk, and potentially improve all levels of coaching (Partington, 2014). Interestingly, there is evidence to suggest a demand from coaches for more training on health and safety issues, including risk management and (ir)responsible coaching (Stirling et al., 2012). Accordingly, critical examination of the issue of negligent coaching would inform coach education by: enabling the modelling and sharing of best practice; unpacking important ethical concerns; and, further informing the classification of coaching as a ‘profession’.