Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms | Critical Care Medicine | JAMA | JAMA Network
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April 1, 2020

Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19: Assessing the Risks and Identifying Needed Reforms

Author Affiliations
  • 1Harvard Law School, Harvard University, Cambridge, Massachusetts
  • 2University of Pittsburgh, Department of Critical Care, Pittsburgh, Pennsylvania
JAMA. 2020;323(19):1901-1902. doi:10.1001/jama.2020.5442

With an anticipated shortage of ventilators for patients with coronavirus disease 2019 (COVID-19), hospitals, physicians, and nurses may have to make an unprecedented decision: should they withdraw or withhold ventilators from some patients and use them for other patients who have a better chance of survival? It is not uncommon for care teams to decide against initiating or continuing mechanical ventilation when such treatment would not achieve a patient’s goals or directives. COVID-19 presents a different case: patients who do not receive a ventilator could benefit, perhaps living for many additional years, if they receive short-term mechanical ventilation. 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.

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    3 Comments for this article
    EXPAND ALL
    PREP ACT: Unnatural times need Drastic measures
    Hunasikatti Mahadevappa, MD FCCP | INOVA Fairfax Hospital, Falls Church, VA and FDA, Silver Spring, MD
    The authors did not discuss much about the Public Readiness and Emergency Preparedness Act (PREP Act), which authorizes the Secretary of Health and Human Services (the Secretary) to issue a Declaration to provide liability immunity to certain individuals and entities (Covered Persons) against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of medical countermeasures (Covered Countermeasures), except for claims involving “willful misconduct” as defined in the PREP Act (1).

    The authors state that "physicians cannot be punished for failing to provide a ventilator that does not exist,
    as will be true if the supply of ventilators is insufficient." However, triage of ventilators is not that straightforward.  A single ventilator may be used for two patients and a complainant may criticize the physician for not pursuing dual patient ventilator despite lack of effectiveness. That is the reason it is essential for all heath care workers to be protected from all civil and criminal penalties with only one exception of "willful misconduct'.

    We need national guidance on withdrawing life support from one patient to provide it to another. This may be confusing to many physicians. It is time for HHS to come up with National Guidelines. Eg, if a team of 3 physicians agrees that continuation of ventilation indefinitely may not bring the patient back to baseline function; the patient is above the age of 85 years and has multiple organ involvement ( three organ systems); and a quick appeal process in a 4 hour period in the hospital agrees with the discontinuation of ventilation -that should be protected against legal liability. These are times of war 'War against the Coronavirus" requiring drastic solutions and the quickest response times. Use the principle " Is the patient salvageable?"

    Protecting health care workers from legal liability can only be done with bipartisan agenda. There are already many specialty organizations talking internally regarding their legal liability in not-so-normal times. These unnatural times need drastic federal legislation that at least for the next 6 months all health care workers must be protected from civil and criminal liability.

    References:

    1. CDC COVID-19 Summary; https://www.cdc.gov/coronavirus/2019-ncov/summary.html, accessed 27Feb2020,
    CONFLICT OF INTEREST: None Reported
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    No Unanimity Among Ethicists
    Torbjorn Tannsjo, Professor | Stockholm University
    There are indeed conflicting views among ethicists with regard to triage in situations of mass casualty; see chapter 10 of my recent "Setting Health-Care Priorities. What Ethical Theories Tell Us (Oxford Univeristy Press, 2019).
    CONFLICT OF INTEREST: None Reported
    Defense of Necessity
    Miriam Weismann, JD, LLM | Florida International University
    It is important to note that in many state jurisdictions, necessity is never a defense for the killing of another individual, no matter what threat may be presented.
    CONFLICT OF INTEREST: None Reported
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