The Rationing of Care May Lead to Lawsuits Against Doctors. Here Is What We Should Do to Protect Them | Opinion

In cities around the country, the COVID-19 pandemic has moved hospitals from conventional care to crisis care, forcing choices upon us that no one wants to make, and changing the standard of care we have long taken for granted. Triage in a time of crisis must combine hard-headed, evidence-based policies with public understanding and support—even when individual cases tear at our hearts.

It goes without saying that every effort should be made to relieve scarcity, by bringing in more beds, equipment and personnel. Contingency standards of care can be used to provide the usual services in non-conventional ways, such as reusing or sharing some forms of equipment.

At some point, however, this will not be enough. Once a hospital has arrived at the moment when there simply are not enough beds or ventilators, the usual standard of care yields to a "crisis standard of care" (CSC), defined by the National Academy of Medicine as a substantial change in the level of care it is possible to deliver, brought about by a formally declared disaster. The CSC relaxes the usual medical standards for clinical care, and shifts focus from individual patients to the patient population as a whole, until the situation eases. Response times might get a little longer to allow health care providers to put on protective gear, for example, or some kind of monitoring might become intermittent rather than continuous.

Under circumstances like these, the last thing we need is for doctors and nurses and other providers to fear being sued for negligence when their care no longer meets the standard that applies under normal conditions.

Negligence—or, as in this context, medical malpractice—is determined primarily by whether a provider met the standard of care. The triage necessitated by a crisis may look like negligence, because it diverges so dramatically from ordinary standards. In an ideal world, the existence of a crisis situation would make it abundantly clear that the standard has changed, and that actions like delaying or forgoing tests and procedures would not constitute malpractice.

Indeed, if a suit were brought as a result of a crisis standard of care, the provider likely could win. But the very fact of being sued, regardless of the outcome months or years later, is expensive, distressing and a source of fear.

A number of mechanisms exist to protect providers and other key players from liability when they are acting within the parameters of a crisis standard of care. The Federal Public Readiness and Emergency Preparedness (PREP) Act immunizes the U.S. government, manufacturers, pharmacies, state and local program planners and many providers from a suit when administering an "authorized countermeasure" (for example, a medication approved by Federal Drug Administration under an emergency use authorization) during a declared health emergency. But by its language, one might question whether it also applies when the issue is deciding not to administer a treatment or use a device. This is of central importance as we move toward the most difficult decisions under a CSC: the choice to forgo or even withdraw ventilator assistance from some patients.

In the context of scarce equipment such as ventilators, some kind of triage protocol is needed. There is no one priority system in place for the country, or indeed, for many states. In that void, hospitals have adopted their own systems, usually with the goal of saving as many lives as possible, by giving priority to those with the best chance of survival. This means that those with underlying health conditions may have lower priority, and at times will not be placed on a ventilator.

Even more distressingly, some patients might be taken off a ventilator if it does not appear to be showing benefit, though the ability to predict survival if the equipment were left on longer is limited.

Healthcare Opt Ed R. Alta Charo
The last thing we need mid-pandemic is for already overwhelmed, overworked doctors and nurses to worry about being sued, writes R. Alta Charo. Illustration by Alex Fine; Photo By Dana Neely/Getty

Age alone should not be a determinant, nor disability, race or socio-economic status, but each of these may correlate with higher a rate of underlying illnesses. It is precisely because of these unhappy correlations that public trust is so essential. If a rationing system is perceived as biased in favor of those already privileged, public and political pressure will grow to abandon discretion and substitute absolute rules or lottery systems. Under such systems, the body count will grow.

The nature of this pandemic makes the task of obtaining public trust even harder, because hospitals have been forced to limit or even entirely eliminate visitors in order to reduce risk of transmitting the virus. When family members cannot be at the bedside, sharing the doctor-patient conversations about medical options and observing for themselves the dire conditions, it can be even harder to believe that someone must be moved from intensive care to palliative care. And the emotional distress of being separated from a parent or spouse in the last days of life, unable to act as an advocate, offer comfort or even provide a sip of water is acute, making it even more likely these family members might question the triage policies in place.

States and hospitals should work toward adopting common rules for triage protocols as much as possible, and state medical societies should endorse them as representing an appropriate crisis standard. Governors should use executive and legislative powers to formally acknowledge that CSC is now in place, and that adherence to CSC and to the prioritization guidelines will not be considered a form of malpractice.

A few states already have such provisions under their emergency powers. The governor of New York recently issued an order to protect providers from liability, but does not yet want to talk openly about rationing. Naturally, the state is still working hard to obtain enough equipment to serve every patient, but in the end, any notion of a "standard" of care will be undermined if the rules of triage vary widely from hospital to hospital throughout the state.

With the prospect of rationing comes an obligation to make provision for those most directly affected. If anyone is denied access to an ICU bed or to a ventilator or to any other scarce resource because the prospect of survival is too slim, palliative care and hospice care must be made available, and contact with family made possible, in person if manageable or by electronic means if not. A crisis standard may be different from the conventional standard, but it is still, in the end, a standard and duty of care.

R. Alta Charo, J.D., is a professor of law and bioethics at the University of Wisconsin. She is currently on leave as a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford University.

The views expressed in this article are the writer's own.

The Rationing of Care May Lead to Lawsuits Against Doctors. Here Is What We Should Do to Protect Them | Opinion