Claudia DiMarzo


Beginning with an investigation into the problematic nature of medical liability, the Article overviews the most significant approaches taken by courts and scholars in order to establish whether the physician's position before the patient is comparable with that of either a tortfeasor or a contractor.

Having explained that the most recent approaches in this regard tend toward the recognition of the contractual nature of medical liability, the Author discusses the implications of such a solution, making specific reference to the following issues: 1) the assignment of the burden of proof (along with the distinction between obligations of means and obligations of result); 2) proof of causation (along with further reference to the difference between civil and criminal standards of proof regarding causation-in-fact); 3) the role of informed consent; 4) the prescription regime.

The final part of the Article investigates the rapid increase in medical malpractice litigation as a side-effect of the "contractualization" of medical liability, focusing on the strategies to follow in order to minimize expense claims.