Covid-19 has convincingly articulated to physicians, patients, and the general public that there are not enough healthcare resources for everyone. One particular resource that is in shortage are ventilators [1]. Covid-19 is capable of causing severe respiratory distress, and more specifically, acute respiratory distress syndrome (ARDS), which congests one’s alveoli with fluid. This fluid adds difficulty to the mere action of breathing, because the alveoli are the part of the lungs that do the heavy work of breathing by facilitating the exchange of oxygen and carbon dioxide. Ventilators are used for a myriad of clinical purposes, and chiefly operate by creating a positive pressure system that allows air to flow into the lungs. This pressure can allow patients to breathe more effectively despite their respiratory distress and helps prevent their alveoli from collapsing. Due to the scarcity of resources as the healthcare force combats Covid-19, there are fewer ventilators than there are patients with Covid-19 who may depend on ventilators for their survival. This issue raises an important question: how are ventilators allocated and what are the legal consequences of failing to provide a ventilator to a patient who needs it because your hospital does not have enough? This also can be expanded to investigating the legal consequences of withdrawing ventilator support from a patient currently on a ventilator in order to support another patient.

Clinical Negligence

The legal culpability of a physician or healthcare professional who withholds or withdraws ventilators from patients must be reanalyzed within the realm of medical malpractice because it is currently possible to file a clinical negligence suit against physicians during a pandemic [2]. To prove clinical negligence, these three conditions must be satisfied:

1. The physician must owe a duty of care to the patient.

2. The physician must breach that duty of care to the patient.

3. The breach of the duty of care must have caused the injury sustained by the patient.

These three conditions must be concurrently proven by the plaintiff, and the third condition, which is often called causation, is typically the most complex to prove. In the case of ventilators, the causation clause must prove that the patient’s injury resulted from the withholding of the ventilator. Therefore, if a patient is expected to die even if they were on a ventilator, then they would face greater scrutiny from the court in proving causation.

Potential Criminal Liability

There is another possibility, albeit much slimmer, that a physician is criminally liable—rather than merely civilly liable, as is typically the case in malpractice suits—for withholding a ventilator. A physician who is aware that their action of withdrawing ventilator support will inevitably and directly result in the patient’s death can face homicide charges [3]. Furthermore, this is irrespective of how little the difference in lengthening life is between going on ventilator and not going on ventilator could be, even if it is merely a few hours[a][b][c][d] [4]. However, a physician can still convincingly make the claim that the withdrawal of a ventilator allowed for a greater harm to be averted, where a healthier patient with greater odds of survival if they were on a ventilator is saved. Furthermore, a physician cannot be liable for not providing a ventilator if the ventilator supply is insufficient [5].

Outside the United States

This issue is not confined to the United States. It is also an issue in other countries with limited healthcare resources and significant demand, which often have supplementary guidance on how to maintain a sought-after supply of ventilators. For instance, in the U.K., there is guidance on ventilator triage policies, which has a central dogma of resource allocation in a manner to save the greatest number of lives [6]. A popularly contested idea in the U.K. to effectively address resource allocation is to reassess patients at 48 hours of ventilation; the point of contention is the specific time marker of 48 hours and whether it is too short [7].

The Maryland Paradigm

For physicians who risk their lives battling Covid-19 despite a severe lack of support from the federal government, their existing legal immunities must be expanded upon across the nation. There is little certainty on how COVID -19 will manifest itself in individual patients, and healthcare professionals should be more explicitly protected from the enhanced legal exposure they face as a result of resource scarcity driven by events out of their control. A model that accurately accounts for the services of healthcare professionals in the Covid-era exists in Maryland. There, a physician whose actions are consistent with statewide ventilator allocation policies is granted “likely” immunity even if there are “negative consequences from withdrawing a ventilator” is granted “likely” immunity [8]. Furthermore, the Maryland statute includes a clause of healthcare professionals being granted legal immunity if they are “acting in good faith and under a catastrophic health emergency proclamation” [9]. For their service in times of a distress, healthcare professionals should rationally expect greater legal protection in the aftermath of a pandemic. The Maryland statute explicitly lays out a foundation of viable avenues to achieve appropriate legal protection, but there is yet any federal legislation that expands these notions nationally, particularly concerning when federal legislators exacerbated the workload of physicians through their actions. There are movements in Congress to safeguard parties from increased legal liability during Covid-19, namely the SAFE TO WORK Act introduced by the Senate Republicans. However, that Act does not protect healthcare providers specifically or comprehensively [10]. Therefore, it is imperative to extend legal protections to the healthcare industry, who are exposed to significant legal liability due to Covid-19, and currently suffer from a dearth of legal protection from the federal government.

Ashwin Palaniappan, who is a fourth-year student at Brown, is a BULR Staff Writer. He will be attending medical school next fall, and can be reached at ashwin_palaniappan@brown.edu.

References

[1] Ranney, M. L., Griffeth, V., & Jha, A. K. (2020). Critical Supply Shortages - The Need for Ventilators and Personal Protective Equipment during the Covid-19 Pandemic. The New England journal of medicine, 382(18), e41. Accessed November 1, 2020, https://doi.org/10.1056/NEJMp2006141

[2] Gutmann Koch, Valerie and Roxland, Beth E., Unique Proposals for Limiting Legal Liability and Encouraging Adherence to Ventilator Allocation Guidelines in an Influenza Pandemic (January 1, 2013). Chicago-Kent College of Law Research Paper No. 2013-06, Accessed November 1, 2020, http://dx.doi.org/10.2139/ssrn.2174511

[3] American Law Institute, Restatement (Second) of Torts, §924, comment (e).

[4] Cohen IG, Crespo AM, White DB. Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms. JAMA. 2020;323(19):1901–1902. Accessed November 1, 2020, doi:10.1001/jama.2020.5442

[5] Lafave, W. Substantive Criminal Law 3d ed. §6.2(a), (c). Thomson Reuters; 2017.

[6] Liddell, K., Skopek, J. M., Palmer, S., Martin, S., Anderson, J., & Sagar, A. (2020). Who gets the ventilator? Important legal rights in a pandemic. Journal of medical ethics, 46(7), 421–426. Accessed November 1, 2020, https://doi.org/10.1136/medethics-2020-106332

[7] Sprung CL, Zimmerman JL, Christian MD, et al. Recommendations for intensive care unit and hospital preparations for an influenza epidemic or mass disaster: summary report of the European Society of Intensive Care Medicine’s Task Force for intensive care unit triage during an influenza epidemic or mass disaster. Intensive Care Med 2010;36(3):428–43. Accessed November 1, 2020, 10.1007/s00134-010-1759-y

[8] Opinions of the Maryland Attorney General. Health–public health emergency preparedness–state’s authority to ration ventilators during pandemic–physician immunity. Published December 28, 2015. Accessed October 25, 2020. http://www.marylandattorneygeneral.gov/Opinions%20Documents/2015/100oag160.pdf

[9] MD Code, Public Safety, §14-3A-06; §14-3A-01(e)(1)-(3). Accessed November 1, 2020, https://law.justia.com/codes/maryland/2005/gps/14-3A-06.html

[10] Finch, B. and Kessler, Z. Senate Republicans Unveil Proposed Covid-19 Liability Shield. Published July 29, 2020. Accessed October 25, 2020.

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