Il diritto alla salute e il danno biologico : uno studio tra Brasile e Italia

Abstract

The present study focuses on the central right to health and the figure of jurisprudence at the biological damage in Italy from a rereading about the Brazilian and Italian juridical ordenament. Initially it is approached the fundamental social right to health in a socio juridical outlook, passing by important socio-historical and constitutional milestones at the search for right to health in Brazil and Italy. It is presented a number of relevant considerations to the Brazilian and Italian juridical ordenament concerning the civil responsibility and damage, making possible to go through the specific approach on the biological damage and its implications for setting and legitimation. Finally, it is analyzed specific jurisprudence cases from the Court and Supreme Court of the state of Rio Grande do Sul, Brazil, utilizing the expressions “right to health” and “damage to health” as search arguments on the respective websites of each court, between 20 may 2004 up to 20 may 2009, in other words, the last five years. Thus, it is possible to use the figure of the Italian biological damage as an argument towards to the protection of the right to health in its various meanings, because the essence of this Italian figure is based precisely on the protection of health. Otherwise, the fundamental social right to health is directly related to an essential guarantee for the full development and satisfaction of the life quality, having the center of every living civil rights the be respect for the man, his dignity and their inalienable rights. Thus, social rights imply different levels of obligations: obligations to respect, to protect and fulfill these rights through a legal legitimate and effective instrumental. It is not enough to recognize and declare the right to health, which must also be guaranteed. Only in this way the society will able to reduce excessive inequality, ensuring the welfare of all and emphasizing primarily the idea of social justice as the fundamental social right to health not just a standard program, but as a "right o all of us and duty of the State."