Direito penal da triagem: a responsabilidade penal médica em situação de impossibilidade de cumprimento de deveres equivalentes cumulativos em serviços de atendimento de urgência e emergência

Abstract

The impossibility of fulfilling cumulative and equivalent duties in the practice of medicine in emergency and urgent care services became particularly evident during the COVID-19 pandemic, highlighting challenges related to medical criminal liability in such circumstances. This study arises in the absence of specific legal provisions and doctrinal uncertainty on the topic, proposing to develop an appropriate dogmatic-criminal approach to solve this problem. The general objective is to seek a theoretical basis for addressing the impossibility of fulfilling cumulative and equivalent duties, in accordance with the national legal system, and to examine the systematization of the concept of conflict of duties in the theory of crime in the national context. Specifically, the study seeks to propose a solution or dogmatic guideline for issues of criminal liability in extreme situations — such as mass tragedies in health care settings — in which doctors are forced to make tragic decisions amid scarce re-sources and overcrowding, constituting an inevitable choice of harm. The methodology adopted integrates a qualitative and exploratory approach, supported by a systematic literature review in the areas of criminal law and public health, with an emphasis on the Unified Health System (SUS), combined with the application of the legal case resolution method (Gutachtenstil) to analyze hypothetical problem cases. This methodological articulation al-lowed the development of clear and objective dogmatic solutions, enabling the practical ap-plication of the theory. The research is organized around three main axes: (1) investigation of the organization and triage protocols in emergency services in Brazil, focusing on the doctor-patient relationship and the decision-making process in contexts of scarce resources and overcrowding; (2) examination of the dogmatic-criminal construction of the conflict of duties institute, covering its historical trajectory and contemporary debate; (3) application of the concept of collision of duties to medical performance in triage, evaluating ethical regu-lations, factual context and normative framework, with a view to supporting a coherent ap-plication of criminal law that prevents arbitrariness and injustice.