An analysis by Ioannis Langa in vima.gr on the legal dimension of the important ethical medical issue that concerns societies in Italy and France.

Can doctors who choose which patients to save from coronavirus face criminal liability?
In the context of the response to the Covid-19 pandemic, fortunately not yet observed in our country, maintaining the hope that it will never be observed, the tragic duty of doctors to have to choose who (which) of the many sick patients will receive care in the ICU and who will not.

In the context of the response to the Covid-19 pandemic, fortunately not yet observed in our country, maintaining the hope that it will never be observed, the tragic task of doctors to have to choose who (which) of the many sick people will receive care in the ICU and who will not.

The need to resort to such a choice was dictated by the lack of sufficient beds in ICUs to care for all those who were severely ill from Covid-19 and in need of such care. In any such choice, where the physician is called upon to decide, in practice, who will be given a chance to be saved and who will not, the question arises of the physician's responsibility for any burden on the health or even the death of the sick person who is not chosen.

This question, which has arisen globally as a result of the particular circumstances caused by the Covid-19 pandemic ("warlike" conditions) in which doctors carry out their duties, is certainly not novel. Such (or similar) cases are not unknown in criminal law, such as. the case of a shipwreck, in which the dinghy operator, who can save only one of the many shipwreck victims, chooses to save a particular one of them rather than another, or, since we are referring to medical doctors, in which, among the many dying victims of a car accident, all of whom require immediate attention, the doctor chooses to deal first with one of them, usually, in medical practice, with the one whom he considers to have the best chance of being saved by his intervention.

According to the Greek legal order, the doctor has the position of guarantor of the health of the patient whose treatment he is responsible for. He has, that is to say, a special duty and obligation to take care of each patient whose treatment he undertakes, without the possibility of refusing to provide his services.Thus, the choice, among many patients who require admission to an ICU, not to admit one of them and thus not to receive the appropriate in-hospital care, with the possible result of further deterioration of his condition or even his death, appears, at first sight, to be an unlawful act.

However, this critical decision of the doctor and his answer to the tragic and unbearably charged emotional and moral dilemma of "whom to save", when taken in an objectively existing situation as in this case in the treatment of COVID-19, in which there is no sufficient logistical infrastructure - sufficient ICU units - to treat all patients, the doctor's choice to save one(s) of them is excused by our Criminal Law (CC and most countries' CC)

Indeed, in this case the doctor is (objectively) unable to fulfil his duty to all, and the choice he makes is the result of a socially and morally expected process of weighing the doctor's capabilities and duty, which is not disapproved by law.

Our society and its institutions require the physician to save anyone he can, as his obligation to perform his duty under medical ethics to render aid is general and not traceable to a particular person(s).
The physician's dilemma of whom to prefer is ethical-medical and legally indifferent, since not helping others (due to objective impossibility) is, given the circumstances, socially expected.

This omission of action by the doctor is not included in the concept of a criminal act and in particular a criminal omission as described in Article 14 of the Criminal Code because the omission or in other words the positive action of which the lack is established, can have a criminal dimension, when it is possible and not impossible as is the case in the present case.

We are fortunate that in our country such dilemmas have not arisen and we all hope that they will not arise in the future, since they would burden, even more, the titanic struggle that the Greek physicians give untiringly day and night and for which we owe them our undivided gratitude."

*Mr. Ioannis Langas is an Athens lawyer (graduate of the Political Science Department of Panteion University, graduate of the Athens Law School, Lawyer, member of the Union of Greek Criminal Lawyers) and who has experience in litigating criminal and civil cases involving reported medical negligence.