Our health care system is on the cusp of a crisis not seen before. A ventilator shortage is coming, if it’s not already here. Hospitals, physicians and nurses are likely to face a terrible choice: Should they withdraw or withhold ventilators from some patients so that others with better odds of survival might benefit from the machines?
Doctors are used to discontinuing ventilator treatment if it doesn’t achieve a patient’s goals or is inconsistent with a patient’s wishes. But Covid-19 presents an altogether different issue: Denying some patients short-term ventilation, against their wishes, will probably cause them to die when they might have gone on to live long and healthy lives with the treatment. But it will also make limited numbers of ventilators available to other patients who are more likely to survive.
Facing this dilemma, doctors and medical ethicists have designed model triage protocols that ration and reallocate scarce ventilators among patients, with a goal of saving the most lives. But some doctors, nurses and other health care professionals are already wondering whether following those protocols will put them at risk of being sued or even prosecuted.
In a paper published on Wednesday on the website of The Journal of the American Medical Association, we examined this question. Our diagnosis is mixed. We think the risk of civil and criminal liability is low, provided clinicians follow recommended triage strategies when allocating ventilators. But the risk is not zero, especially in cases where a ventilator is withdrawn from a patient under the leading triage protocols.
And even if health care providers are likely to win such lawsuits or be vindicated in prosecutions, they would still have to defend themselves in court, a prospect that imposes additional stresses and burdens in the midst of an already traumatic situation.
The triage protocols are essential to ensuring that we make it through the impending crisis with the fewest possible deaths. But if these public-health strategies are to succeed, doctors must be willing to follow them. For that to happen, their fears of criminal and civil liability must be addressed.
With potentially thousands of ventilator allocation decisions looming, we should not expect clinicians to charge ahead with triage protocols with nothing more than the hope that prosecutorial discretion or sympathetic juries will protect them down the road. They need clear-cut legal protection, and they need it now.
One state offers a model. A Maryland statute makes health care providers “immune from civil or criminal liability” for actions they take “in good faith” during a declared “catastrophic health emergency.” According to the Maryland Attorney General’s Office, this statute immunizes clinicians who follow state-approved ventilator allocation protocols, “regardless of the negative consequences arising from the withdrawal of a patient’s ventilator.”
Our appeal to state legislatures around the country is simple and urgent: Pass a similar statute, immunizing health care workers who follow state-approved triage protocols, and do so immediately. Governors should promptly sign these measures and issue the emergency declarations that will trigger the statute’s protections. To ensure prompt passage, legislators can set them to expire automatically after a few months to allay any concerns about the potential long-term ramifications of liability shields.
While these emergency statutes are drafted and debated, state and local prosecutors can also help. They should send letters to every hospital in their jurisdiction stating that in their view, triage decisions that comply with well-recognized protocols are not criminal offenses and will not be prosecuted. Health care providers who relied on such letters could rest assured that they are protected from criminal liability.
The immunity statute we recommend is narrow in scope. But it is essential. Hopefully, American physicians will be spared the excruciating decisions that triaging ventilators entail. Still, we need to prepare now for that eventuality. Part of that preparation includes protecting our doctors from civil and criminal liability.
I. Glenn Cohen and Andrew M. Crespo are professors at Harvard Law School, where Mr. Cohen is faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology and Bioethics. Douglas B. White is a professor of critical care medicine at the University of Pittsburgh and director of its Program on Ethics and Decision Making in Critical Illness.
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