06 June 2021
The recent conversion into law of the Covid decree 44/2021 has brought a substantial novelty regarding the legal protection of health professionals involved in the front row in the fight against the pandemic. And it is contained in article 3 bis. Based on the wording of the law, it is envisaged that during the entire state of emergency due to Covid-19, the cases regulated by articles 589 and 590 of the criminal code are punished only in cases of “gross negligence”.
These are manslaughter and negligent injuries, disputes which it was possible to incur in the treatment of patients suffering from Covid, especially when it was pitch black on therapies and suffering from a heavy impact. Going to read the detail of the statement of the law, it is clear that the coverage is retroactive, being referable to the moment in which the state of emergency was resolved, ie January 31, 2020. And for the judge who is called to decide on a case in question, some parameters of judgment are established. In order to assess the degree of guilt, in fact, he is called to take into account “the limited scientific knowledge at the time of the incident on Sars Cov-2 pathologies and appropriate therapies, as well as the scarcity of human and material resources concretely available in relation to the number of cases to be treated, as well as the lower level of experience and technical knowledge possessed by non-specialized personnel employed to deal with the emergency ».
So it is a rule that places the case in the particularity of the moment, in the particularly difficult context in which the health workers had to operate. And it takes us back to the periods in which the enormous influx into hospitals took place, there was great uncertainty about the therapies, weighed dramatically by the scarcity of staff, subjected to superhuman work shifts and intensive care. On these criteria, therefore, the judge will be called to evaluate the cases submitted to him. There is no less discretion, but it is channeled into a very specific path. Obviously, the punishment for willful misconduct remains. So this is an extension of the principle of non-punishment already envisaged for vaccinators and the entire range of health professions is included. The rule was obviously welcomed by the doctors’ representative acronyms.
“A big step forward”, defined it by the President of the National Federation of the Orders of Physicians, Surgeons and Dentists, Filippo Anelli. “The limitation of criminal liability to only cases of gross negligence is no longer limited to vaccinations, but concerns all activities performed during the state of epidemiological emergency”. In the same way, the Fials union had exulted: “We welcome with pride this sign of civility in politics, which this time managed to be on the right side, on the side of workers who, despite serious management and organizational deficiencies, managed to support their shoulders the SSN ». The rule had aroused appreciation from the majority parties. And a relief from the Brothers of Italy. During the passage of the provision at Palazzo Madama, in fact, the senator of the right-wing party Alberto Balboni had observed that, as it is designed, the discipline still opens up to civil action.