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Online ISSN 1827-1677
Mauri F. 1, Gennari P. 2, Vigna D. 3, Massimelli M. 2
1 Medico Legale, libero professionista;
2 Università degli Studi di Torino Dipartimento di Scienze della Sanità Pubblica e Pediatriche sez. di Medicina Legale;
3 Specialista in Urologia, libero professionista
With judgment no. 9471 of 19 May 2004, the Civil Appeal Court gave judgment on the case of a female transexual who, after being hospitalized to undergo surgical sex change, through removal of the penis and simultaneous creation of an artificial vagina, lamented the “impossibility of being able to have normal sexual relations”, citing the responsibility of the physician for the intervention failure. With this judgment, the Supreme Court used for the first time the term of “Responsabilità paraoggettiva”: in terms of medical liability this is an innovative judgment, which appears to have started a slow but gradual and constant transmigration of the physician’s professional obligation, from one of means towards an obligation of “quasi-result”. In this paper, after a brief introduction on the legal concept of “responsabilità oggettiva” and after providing some background on the andro-gynoid transexual surgery, we will analyze in detail the Supreme Court’s decision, and we will see how this may have influenced some subsequent pronouncements. The case-law that emerges from our analysis is clearly tended to move upstream the evaluation of the physician’s conduct in terms of guilt, demanding not only the diligent implementation of the action, but also that the patient is duly informed of the nature and risks of the medical performance.