The epidemiological threat posed by the COVID-19 pandemic is a difficult time for society as a whole, but the health professionals are particularly vulnerable.
Problems arise already at the staff level, for example, due to a shortage of medical staff and longer than standard shifts of medical staff. As a result, doctors and other employees work under more time pressure, stress and fatigue at the limit of physical capacity of the body. Such a situation carries many negative consequences, which directly affect the likelihood of a medical error.
The increasing number of infected persons and the burden on hospital wards are driving new measures to strengthen the criminal protection of doctors and other practitioners. New provisions resulting from the act on amendments to certain laws in connection with the prevention of crisis situations related to the occurrence of covid-19, the so-called “covid law” introduced the so-called Good Samaritan clauses.
As practical experience shows, when there is an objective conflict of conduct (in the case of both the doctor and the medical staff) in providing medical care with a standard of conduct in accordance with the so – called model of a reasonable, prudent and competent doctor-we are dealing with responsibility on general principles. The basis of a criminal classification is always an act. In the case of a medical error, the result is a breach of the precautionary principle. Thus, the determination of violations of the rules of precaution are made on the basis of standardized patterns, that is, on the “model of a good doctor”, which forms the rules of proper, required behavior.
It should be noted that such a model should be adapted to individual categories of doctors, and in the current state it would be highly problematic to indicate even one, precisely developed model that would allow an objective statement when there is a violation of the rules of precaution in the given circumstances. This is due, for example, to the fact that COVID-19 is a disease hitherto unknown, and its treatment has no model course. Doctors and medical staff are taking a number of actions for the first time-due to the lack of previous experience and specific appropriate procedures for action. Specialist criteria, such as the rules of knowledge and the art of medicine, are of key importance in determining the extent of care required, which is due to the uniqueness of the field of medicine. Therefore, it is not entirely clear what an objective assessment of what is and what is not an error is due to the gross lack of vigilance in the situation of combating the coronavirus epidemic. This implies that the use of the ‘undefined’ term thus leaves a wide margin of discretion for law enforcement.
The application of the good Samaritan clause is tantamount to non-criminality, i.e. non-detection of medical error, which may raise doubts as to liability under civil law for possible redress. On the other hand, the court in the framework of civil proceedings is not bound by the new provision of the “covid-19 law” and most often the defendant is a hospital, and not a specific medical worker.