With COVID-19 cases yet to peak locally, health care workers on the front lines of the growing outbreak face the possibility of having to make excruciating decisions about who gets care and who doesn’t.
And in Missouri at least, doctors, nurses and others working under these crisis conditions currently lack any legal protections for such life-and-death decisions, worrying health experts and bioethicists.
"When [health care workers] are making these decisions ... we do not want them thinking about medical malpractice or criminal liability. We want them to know ‘we have your back,’” Harvard Law Professor I. Glenn Cohen told KCUR in an email.
A worst-case scenario
Under one grim scenario, the Harvard Global Health Institute projects Missouri will have 12,722 hospital beds available while nearly 28,000 will be needed. That same model projects that Kansas City will have 42% fewer beds than needed.
Anticipating such worst-case scenarios, Missouri health experts and ethicists have developed “crisis standards of care” to guide health care providers if demand begins to outstrip medical resources.
“It’s not a standard of care that’s inferior or worse but one that has a different goal of saving the greatest number of lives possible,” said Dr. Jay Malone, a medical ethicist at Washington University School of Medicine in St. Louis.
Among other issues, the standards address the thorny ethical issues of triage, or the question of prioritizing care when there aren’t enough life-saving resources, like ventilators, to go around.
“The public does not understand the process of escalating response to the crisis because it has been so uneven and inconsistent,” said John Carney, president and CEO of the Kansas City-based Center for Practical Bioethics.
But these crisis standards may also leave health care providers open to potential legal liability if they withhold or withdraw ventilators from some patients and use them instead for other patients with a better chance of survival.
“Denying patients such treatment, against their wishes, most likely will result in their death, but it will also make this scarce resource available to other patients who are more likely to survive if they receive ventilator support,” a recent opinion piece in the Journal of the American Medical Association declared.
"Non-trivial" risk of liability
The piece, by Harvard's Cohen, another Harvard law professors and a doctor at the University of Pittsburgh, says that even though the risks of legal liability in such crisis circumstances are low, “even a small chance of a serious lawsuit could push physicians toward a less ethical and less efficacious first-come, first-serve allocation system for ventilators, leading to a major loss of lives.”
Cohen told KCUR that while the risk of getting sued is small, it’s “non-trivial.”
“We are asking people to act heroically, to engage in some of the most difficult decisions and actions any physician will undertake – withdrawing a ventilator from someone who will benefit against their wishes,’” Cohen said in an email.
Missouri law affords some legal protection to health care providers who are deployed when a state of emergency has been declared. And there’s a Missouri statute that offers protection to doctors and nurses who render uncompensated care at the scene of an accident. But while other states have enacted legal protections for health care providers on the front lines of the COVID-19 outbreak, Missouri has not done so.
Jane Drummond, general counsel for the Missouri Hospital Association, said the association is advocating for just such protection.
“Right now our health care workers are on the absolute frontline of this crisis. And I think anything that we can do as a society, as a state, to have their back and give them some comfort, that if difficult decisions have to be made, they are not going to have to relive them all over in litigation one or two years down the road,” Drummond said.
New York Gov. Andrew Cuomo last week signed legislation protecting health care providers from liability for decisions they make treating COVID-19 patients. And under the CARES Act, the $2 trillion law Congress enacted to provide COVID-19 relief, volunteer health care workers are protected from liability.
Although legal experts say it’s highly unlikely someone who sues over a triage decision will prevail, it’s still important to insulate care givers from the threat of a lawsuit.
Worries about discrimination
One concern is that legislation giving such legal protections for crisis care will also entrench discrimination against people with disabilities and racial and ethnic groups that have long-suffered disparities in the health care they receive.
Dr. Robert Klitzman, who authored an op-ed piece for the New York Times on the need to provide health care workers with legal protection during the COVID-19 crisis, told KCUR that, to avoid such discrimination, triage guidelines must be based on strictly objective criteria.
“In other words, we look at kidney function based on lab values,” said Klitzman, a psychiatrist and director of the masters of bioethics program at Columbia University. “We look at functioning of the pancreas. We look at how the heart is functioning. We look at whether the patient is in coma. These are objective measures of sequential organ failure, of several organs not working.”
Such criteria wouldn't take into account a patient’s ethnic, racial, socioeconomic or insurance status. But as Klitzman noted, the criteria don’t address the larger problem of certain demographic groups, African Americans in particular, who have historically gotten worse care.
“You have groups that are very worried to begin with and will see this as giving doctors license to just not treat them,” he said. “So you want to make sure that the kind of objective assessments and processes we’re talking about are communicated in a fair way.”
In the end, legal experts and bioethicists say, that means making clear that, unlike in normal times, the emphasis on individual patients must be put behind concerns over the greater good.
“That jump may not be clear to people because the duty of care is being superseded by population survival,” said Carney, of the Center for Practical Bioethics. “And so this is the kind of moral anxiety and moral dilemma that we face.”
Dan Margolies is a senior reporter and editor at KCUR. You can reach him on Twitter @DanMargolies
