Medical responsibility in times of pandemic do we need new standards?

Abstract

The article discusses civil liability for doctors working in the context of COVID-19. After describing the evolution of medical fault, it is analyzed whether the established notions are sufficient to face the situation of doctors who are acting in this conjuncture. The concept of subjective fault was abandoned everywhere, being replaced by the concept of “objective” fault, by which the presence or absence of fault is investigated by comparing the conduct concretely adopted by the agent to whom liability is imputed, with the conduct that, abstractly, another doctor would have adopted, according to the usual scientific standards, had he been in the same objective conditions as that doctor. Acting in the absence of scientific protocols and consensual treatments, due to the urgency of the cases and the lack of support devices, under permanent professional stress, it would be difficult to conclude that another doctor would have acted differently. Thus, after analyzing some situations that will certainly occur in these difficult moments that we are going through, it will be concluded that there is no need to adopt new notions to analyze medical civil liability, as the arsenal of ideas about medical fault is already ductile and malleable enough to allow its adaptation to the context of COVID-19. The dialectical method was used, using basic bibliographic research, aiming at its application, with a qualitative approach.