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Medical malpractice and infringement of the objective duty of care

Others

<10670/1.j228he>
Disciplines
Keywords
Triple Keywords
Acts, Legislative
Legislative enactments
Laws (Statutes)
Enactments, Legislative
Legislative acts
Law
Unlawfulness
Illegality
Communication and traffic
Traffic
Communications industries
Mass communication
Literature
World literature
Western literature (Western countries)
Belles-lettres
Concepts
Concept formation
Risk
Fatalism
Fate and fatalism
Destiny

Abstract

The present academic trial seeks to highlight how the category ‘objective duty of care’ in blame offences has helped to clarify the order of fault in the crime, since the traditional doctrine of criminal law granted ‘fault’ on a subjective basis, which together with ‘intent’ formed part of guilt. In this regard, the aim of the investigation is to emphasise that, in the case of the offence, the infringement of objective care is not a matter of guilt, but of unlawfulness; whereas that category is validly applied not only in cases of traffic, but also in cases of medical malpractice; this position has been accepted by national legal literature and case-law. At the same time, we would point out, by way of conclusion, that, as the national case-law has contradicted itself not only the concept of the objective duty of care, but also the criteria for objective imputation (creation of an unauthorised risk) in order to reach the same destination, that imputation to the objective type in culpatory offences lies in the nature of the offence and not in guilt.

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