Legal Decision-making and Crisis Standards of Care: Tiebreaking During the COVID-19 Pandemic and in Other Public Health Emergencies

Extensive surges of patients coupled with shortages of staff and resources throughout the COVID-19 pandemic have contributed to repeated crises in US hospitals and health care facilities.¹ During the recent wave of infections in mid-July through mid-November 2021, more than 1 million individuals with COVID-19 were admitted to hospitals, 156 382 of whom died of COVID-19 complications. Most of these hospital admissions and patient deaths were preventable through widely available and efficacious SARS-CoV-2 vaccines. Still, nearly 40% of vaccine-eligible people in the US are not fully immunized,² suggesting additional patient surges are foreseeable in 2022.

Decisive actions among doctors, hospitalists, and health officials aim to allocate available treatments, resources, and personnel to avoid limiting patient access to services. Yet, in select hospitals, regions, and states, scarcities have warranted shifts to crisis standards of care (CSC).³ Legal invocations of CSC vary. Governors in Alaska, Arizona, Idaho, New Hampshire, and New Mexico have formally invoked CSC. Declarations of emergency in Utah may automatically activate existing facility CSC plans. Kansas and Tennessee expressly allow hospitals to shift to CSC on their own initiative. Georgia, Ohio, Oregon, and other jurisdictions that lack statewide CSC plans rely on regional and/or local activations. No matter how CSC is invoked, its goal remains the same: to “extend care to as many patients as possible and save as many lives as possible.”⁴

Achieving this goal raises considerable legal challenges for hospitals and clinicians, including concerns with licensure, privileging, scope of practice, clinical duties, and liability. Many of these concerns are resolved through existing federal or state emergency declarations, compacts, or agreements offering a slate of legal options to facilitate CSC implementation. Among the most controversial legal issues at the core of CSC, however, is the need to make tough choices in real time when too many patients need immediate access to staff, beds, equipment, and treatment. Allocating health services in these tiebreaker situations invariably means that some patients are denied access to resources in favor of other patients. Consequences can be dire. A recent study showed that health resource availability (eg, staff and beds) was statistically correlated with heightened COVID-19 mortality rates across thousands of US hospitals in April 2020⁵—patients with COVID-19 have died waiting for access to intensive care beds.

Consistent with CSC plans, hospital triage committees and clinicians responsible for tiebreaking decisions must balance medical, ethical, and practical factors while avoiding illegal criteria. Manifold considerations, including patients’ race and ethnicity, skin color, and sex, are expressly forbidden from the decision-making process by law. In March 2020, the US Health and Human Services (HHS) Office for Civil Rights warned states to avoid unlawful discrimination based on these factors across all HHS-funded programs.⁶ Subsequently, several states adjusted their CSC plans. Alabama removed language from its 2010 ventilator allocation guidance denying access to “[p]ersons with severe or profound mental retardation, moderate to severe dementia, or catastrophic neurological complications.”⁷ Other considerations are also largely off the table, including patients’ religious affiliation, ability to pay, and categorical exclusions based solely on age, disability, and/or long-term survivability.

Crisis standards of care decision-makers are in a difficult position. They cannot make real-time choices based on numerous legally prohibited factors but often lack explicit or meaningful guidance concerning criteria they can use. As Johns Hopkins researchers attested in 2020, insufficient CSC guidelines in New York essentially left it up to bedside clinicians “to make the least bad decision under extraordinary circumstances.”⁸ Some CSC plans explicitly list criteria that decision-makers may use in tiebreaking situations, including prioritization of patients who are pregnant, minors, and those who arrived first for care or initially received a scarce resource (eg, ventilator, intensive care bed). Facing scant or unclear guidance, ad hoc determinations of patient care may ensue, and these are the antithesis of CSC. Even with guidance, some hospitals and physicians may resist CSC for operational reasons or concerns for specific patient outcomes. For example, in Arizona, Banner hospitals avoided implementing an internal CSC plan in June 2020 despite the state’s activation of its CSC plan.

Circumventing CSC presents additional risks. Doctors and hospitalists may face civil liability, federal or state penalties, de-licensure, or criminal charges if patients are harmed or discriminated against. Although acts of ordinary negligence may be excused during a crisis, there are no emergency liability protections for intentional acts that contribute directly to patient injuries or deaths. For example, in March 2021, a nurse in Indiana was charged with a felony after she removed oxygen therapy from a nursing home patient who later died.⁹

The US National Academy of Medicine (to which we have provided input) has stated that active CSC planning and implementation rely on decision-makers to navigate legal pitfalls and make sound choices in tiebreaker scenarios. As the Academy observed on March 28, 2020, “[e]xtreme scarcity can necessitate difficult life-and-death decisions. Healthcare workers [making] them must have adequate guidance…to follow the rule of law.”³ There is a pathway out of this legal morass: defensible legal criteria for rendering tiebreaking patient care decisions in crises. These defensible criteria include use of:

• Individualized medical assessments—based on individualized prognostics (eg, white blood cell, lymphocyte, platelet counts) considering patient benefits from limited resources, guided by the best available medical and public health evidence, are permissible and highly preferable to categorical exclusion criteria;

• Age as a prognostic factor—proscribed as a categorical criterion, age may be considered as a clinical factor relevant to individualized assessments. Recommendations by several national organizations, republished by HHS, note that age may be a relevant prognostic consideration in some circumstances⁶;

• Short-term survivability—defined as patient survivability until hospital discharge (or just after), this is a viable consideration in contrast to long-term survivability, which may perpetuate age-, disability-, or race-based discrimination. To the extent that older persons typically have lower long-term survivability than younger persons, estimates based on remaining life-years can constitute age-based discrimination. Similar discriminatory outcomes may also arise when patients with disabilities face shortened life expectancies compared with other patients. Racial and ethnic biases may surface as well, given that Black and Native American populations experience lower life expectancies than White populations in the US. To limit unwarranted discrimination, considerations of long-term survivability are expressly proscribed;

• Equitable clinical scores—clinical assessment scores are controversial but can be considered when they do not disparately affect specific groups. For example, Sequential Organ Failure Assessment scores have demonstrably overestimated mortality among Black patient populations and should be avoided unless adjustments are made to diminish discriminatory effects¹⁰;

• Suitability of limited resources—to the extent that certain resources (eg, dedicated neonatal ventilators) or interventions (eg, long-distance transfers) are unsuitable, risky, or unbeneficial for some patients, appropriate allocations should be made;

• Patient or proxy/surrogate informed consent and choices—this means respecting individual autonomy, including a patient’s decision to decline medical treatment at regular intervals, presuming that patients and/or their surrogates are not being steered or coerced into making deleterious choices; and

• Access to appeals—an appeals process must be incorporated into CSC tiebreaking decisions, given emerging medical, public health, and/or other information. Patients who do not receive a medical intervention owing to a particular determination should automatically be reconsidered in future decisions.

Crisis standards of care aim to ensure equitable allocations of critical health care resources and treatment to as many patients as possible to prevent avoidable morbidity and mortality.³ Invocations of CSC may entail tiebreaking decisions among similarly situated patients. No formula or approach makes these choices easy; however, effective, fair, and sound decisions in line with specific criteria are medically, ethically, and legally defensible.

Published: January 21, 2022. doi:10.1001/jamahealthforum.2021.4799

Open Access: This is an open access article distributed under the terms of the CC-BY License. © 2022 Hodge JG Jr et al. JAMA Health Forum.

Corresponding Author: James G. Hodge Jr, JD, LLM, Center for Public Health Law and Policy, Sandra Day O’Connor College of Law, Arizona State University, 111 E Taylor St, MC 9520, Phoenix, AZ 85004-4467 (james.hodge.1@asu.edu).

Conflict of Interest Disclosures: None reported.