The aim is: to point out, in respect of Italian case law trends, the concept and the boundaries of surgeon malpractice liability in evaluating and implanting new prosthesic materials.

The surgeon is liable for damages caused by fraudulent intention or fault during his clinical and operating activity. In a civil perspective, it could be the result of either a breach of a contract or a tort, depending on the existing relationship between the surgeon and the patient; but in both case there might be a serious inexperience or a light imprudence or negligence to admit a fair compensation for damages. While in a criminal perspective, the personal injuries might be the result of a serious fault also in the area of imprudence and negligence to admit the application of criminal sanctions. Of course, personal liability of surgeon stands by vicarious liability of health unit.

Civil sanctions are more effective than criminal sanctions, not only because they have a wider area of application, but also because they are more incisive in quantitative terms, considering the new guidelines on pecuniary and biological damages that make out, at the same time, a compensatory and punitive function.

The surgeon, to be sure not to be affected by civil and criminal actions, might inform the patient about the operating features and the consequences of non operating, follow standardized protocols, use products and materials tested and certified by the most influential scientific literature, be care of post-operating effects and adopt all remedies and treatments that can eliminate or reduce post-operating risks, use the best and up-to-date techniques available. In any case he is not liable for unforeseeable events, even if they are in a causative relationship with surgical activity.