key: cord-033401-0o1g1924
authors: Jerry II, Robert H
title: COVID-19: responsibility and accountability in a world of rationing
date: 2020-09-12
journal: J Law Biosci
DOI: 10.1093/jlb/lsaa076
sha: 
doc_id: 33401
cord_uid: 0o1g1924

The COVID-19 pandemic is the first modern public health crisis with the potential to overwhelm the public health care system. When rationing of services, drugs, and equipment must occur, health care providers have a responsibility to make rationing decisions fairly, both procedurally and substantively. In addition, health care providers, like all professionals, are accountable for their decisions. The legal standard of care requires providers to exercise the skill and knowledge normally possessed by providers in good standing in the same field or class of practice acting in the same or similar circumstances. But making rationing decisions in crisis conditions, like those created by COVID-19, is not the same as or similar to decision making in non-crisis conditions. Thus, the standard of care, properly applied, expects less of providers practicing under the stress of COVID-19’s triage conditions. Because many health care providers do not perceive this is true, and for pragmatic and normative reasons, policymakers should articulate rules limiting providers’ liability for rationing decisions—as well as other acts and omissions—occurring in and attendant to crisis conditions. These rules should not, however, create absolute immunities. As the COVID-19 pandemic unfolds, more states are embracing this approach.

1 Another kind of -invisible rationing‖ in America is rationing based on ability to pay. The indigent cannot afford to pay for care out-of-pocket (this is true for many kinds of care for broad swaths of the population), and the indigent typically do not have either the resources to purchase health insurance or jobs where employers provide health insurance. Medicaid is designed to address the health care needs of the indigent, but whenever a state chooses to limit Medicaid or not to expand it as invited by the ACA, a kind of rationing of health care services is occurring. Further, even when health care is made available to the indigent, the kind and quality of care is different. Individual patients intuitively understand, for example, that a patient with symptoms of a stroke will receive treatment ahead of a patient with a sprained knee. The corollary of this understanding is an expectation that those with acute illness or serious injury will receive, i.e., will not be denied, needed treatment-as such persons are the priorities in a health care system with ample supply to serve stroke victims and those with sprained knees alike. But because American civilians lack significant experience with events or circumstances causing a need for rationing and triage, the general public lacks reference points to understand what happens when the corollary does not hold and care must be denied to some of the acutely ill. 5 perceptions about this subject are diverse, inconsistent, and in many respects irreconcilable, 9 as is evident in ongoing debates over medical futility, 10 prolonging the life of terminally ill patients, 11 and the question of who decides (i.e., the conflict between physician authority and patient autonomy). 12 COVID-19 has the potential to force a public reckoning with all of these difficult issues.

Drs. Neil Wenger and Martin Shapiro, in a recent op-ed on allocation of scarce resources and the COVID-19 pandemic, concisely and accurately described the issue and the framework for making the difficult decisions that lay ahead. 13 9 See, e.g., Frank Newport, Americans' Mixed Views of Healthcare and Healthcare Reform, Gallup Polling Matters, May 21, 2019, https://news.gallup.com/opinion/polling-matters/257711/americans-mixed-views-healthcarehealthcare-reform.aspx (accessed Aug. 5, 2020) (-Americans have mixed views about almost all aspects of the healthcare system‖); Allen Guelzo, Rationing Care is a Surrender to Death, Wall St. J., Mar. 26, 2020, https://www.wsj.com/articles/rationing-care-is-a-surrender-to-death-11585262558 (visited July 30, 2020) (discussing diverse opinions in past and present discussions about health care rationing). 10 Reviewing recent literature, Aghabarary and Nayeri identified the many definitions of medical futility, and concluded that -[m]edical futility is an extremely complex, ambiguous, subjective, situation-specific, value-laden, and goal-dependent concept which is almost always surrounded by some degrees of uncertainty. Many states have guidelines for rationing during pandemics, and all of these plans call for a committee or a triage officer who is not providing direct patient care to make the rationing decision based on neutral application of objective medical criteria. 16 The rationales for this

approach include promoting consistency of outcomes (which is vital to public trust), eliminating conflicts of resource commitments, and relieving treating physicians of the stress involved in deciding patients' fates. But when, for example, attending physicians determine that a patient needs to be placed on a ventilator, the window of time for saving the patient is narrow, 17 and it is not difficult to imagine surge conditions where time does not allow contacting or consulting the triage committee or officer. 18 In such extreme circumstances, these difficult judgments about resource allocation will need to be made by individual treating physicians providing care on the front line. Because the medical profession's core values align in absolute support of patients, undertaking or being cast in a role in which one must decide not to care for a patient is the assumption of a profoundly unwelcome task. 19 Whether rationing decisions are made by committee, triage officer, or an individual physician in the midst of a surge-created crisis, the decisions are subject to review in accordance with the standards applicable to any other decision, act, or omission occurring in the course of the delivery of health care services. 20 This possibility of ex poste review applies to all who hold themselves out as professionals in any field (medicine; law; engineering; etc.) and who use their

expertise to provide advice or services (or both); being second-guessed by others who enjoy the benefit of hindsight comes with the territory. This reality devolves from two fundamental principles common to all professions. Professionals, regardless of field, have the responsibility to serve their clients, patients, and customers in accordance with the standards of care appropriate to their profession. Further, the relationship between the professional and those served is such that the professional is accountable to the person served for failing to adhere to the appropriate standard of care.

In health care, this translates into a principle that a health care provider who undertakes to render professional care is required to exercise the skill and knowledge normally possessed by providers in the same field or class of practice in good standing in the same or similar circumstances. 21 This does not mean that the provider guarantees a successful outcome, let alone perfection. It does not require a provider, in a situation where she exercises professional judgment, to pursue the same options or make the same decisions that other competent providers may make in situations where different competent providers approach problems in different ways. The standard does not require -average‖ performance from the provider-because that would lead to the absurd conclusion that half of the profession is automatically committing 21 As the standard of care first developed, the members of the profession -in similar communities‖ were used to determine the standard. See Restatement (Second) of Torts: Undertaking in Profession or Trade § 299A (1965). This aspect of the rule was referred to as the -locality rule,‖ and it emerged before medical training and certifications were based on national standards. As applied, the locality rule placed a geographic dimension on the standard of care based on the assumption that the skills and knowledge of practitioners in, for example, rural villages would be inferior to those of practitioners at medical centers in large cities. The emergence of national practice guidelines and standardized training undercut the logic of the locality rule, and thus by the early twenty-first century, nearly all states had abandoned the locality standard and adopted a national standard of care. The -same or similar circumstances‖ requirement, however, allows for consideration of the fact that a physician in a small rural town may lack the resources, e.g., equipment and facilities, available in a larger city, and this is 

malpractice. Rather, the standard is cast in terms of a minimum-that the physician is expected to use at least the degree of care and skill expected of a reasonably competent practitioner in the same class to which he belongs, 22 acting in the same or similar circumstances. 23

The -same or similar circumstances‖ element is important. No one needs to be told that performing triage in the middle of a pandemic is dissimilar to practicing medicine in the routine, normal world. Caring for patients in an emergency room when beds and ventilators are scarce, personal protective equipment (PPE) is running out, the safety of providers is threatened, staff is overworked, and the influx of patients is growing exponentially are not the -same or similar circumstances‖ to those encountered in a world without COVID-19. Thus, the law's standard of care principle does not anticipate or expect that a physician, nurse, or other provider dealing with the stress of the COVID-19 battlefield will perform with the same level of judgment, execution, and excellence that she would have achieved if she were practicing in a normal world. When any provider is required to work in haste in a crumbling infrastructure to treat increasing numbers of casualties and to make quick decisions about rationing scarce resources, mistakes will be made 24 -but this does not mean that the quality of services being provided falls below the standard of care. See also AMA Op. 11.1.3, supra n. 25. The IOM guidance makes this point with an illustration of ventilator allocation in a pandemic. After reviewing existing disaster policies that address ventilator allocation, the Letter stated: -Several disaster policies reviewed by this committee require the use of evidence-based tools to assess the likelihood of benefit from critical care resources, and the reallocation of such resources under conditions of extreme scarcity to patients with the greatest likelihood of benefit when a clear and substantial difference in prognosis exists. These policies comport with an ethical framework that stewards resources and saves the greatest number of lives. . . What a disaster triage policy based on the duty to steward resources would do is effectively override individual

Thus, what the standard of care requires of physicians and other providers in emergencies, triage conditions, or mass disasters changes from what is required in a normal world. From the individual patient's perspective, this means that treatments that would ordinarily have been provided by reasonably competent physicians in a crisis-free health care environment might not be provided in a crisis environment where rationing is occurring. This means that the patient who feels aggrieved by a denial of care and has a valid claim in a non-crisis environment does not necessarily have a valid claim in a crisis environment.

Although the law's standard of care analysis, described above, is complete, cogent, and convincing as a theoretical matter, a fair assessment of the situation on the ground is that the theory does not work perfectly in practice. Liability exposure is a concern for professionals in every occupation, but in the health care profession, this concern is especially acute. 28 The reasons for this are very complex and defy brief explanation. No objective observer seriously argues that the tort liability system needs no improvements, but health care providers' commonly held perceptions about their liability risks are often unsupported by the empirical evidence about incidents, litigation results, and the factors driving insurance costs and risk. 29 Yet whatever the patient preferences and instead supply resources based on evidence-based assessments of the benefit of the treatment relative to its scarcity.‖

reality, perceptions of reality drive behavior. And it is a widely held perception in the health care profession that -[e]xisting medical standards of care are not sufficiently flexible to encourage health care professionals to act appropriately and decisively in a public health emergency.‖ 30

Significantly, the authors of that assessment, who were several members of the IOM Committee that drafted an important 2009 report on crisis standards of care, described that assessment as -a fact supported by federal findings, highly divergent state approaches, and practitioners' field experiences.‖ 31

The law's standard of care, properly applied, provides great deference to health care providers' decisions about the rationing of medical care during a crisis. But if health care 2020) (-The medical liability system costs the nation more than $55 billion annually. This is less than some imaginative estimates put forward in the health reform debate, and it represents a small fraction of total health care spending. Yet in absolute dollars, the amount is not trivial‖); J. (2) whether and to what extent volunteer health practitioners have actually been subject to liability claims. Id. It -also determined that such information is unlikely to be generated in any useful and reliable form in the foreseeable future.‖ Id. The Commission decided, however, that liability standards should nevertheless be clarified to address the uncertainties and perceptions articulated by providers and entities, such as the American Red Cross, that organize responses to such emergencies. See id. The Commission considered the perceptions strong enough to -create a significant risk that adequate health services needed to reduce morbidity and mortality within affected populations would not be available.‖ Id. 33 The triggering event for applying a crisis standard of care is a disaster or emergency; thus, it should follow that the crisis standard should be applied only to care directly affected or influenced by the disaster or emergency, and not to care unaffected by the circumstances giving rise to the disaster or emergency declaration. Accordingly, the existence of a pandemic does not, and should not, create a blanket limited immunity for all health care professionals practicing in all fields in all circumstances. To illustrate, trauma care specialists in an emergency room challenged by an overrun of patients due to pandemic conditions should be subject to a more lenient standard than a surgeon who operates on a patient during a pandemic but under conditions that are no different from those prevailing in normal circumstances. Similarly, a nursing home that provides the same services with the same staff to the same number of patients should not receive the protections of a crisis standard simply because a public health emergency has been declared. Some state statutes enacted in 2020 to created limited immunities for health care providers during the COVID-19 pandemic contain language that seeks to operationalize this distinction. For example, the Massachusetts statute provides a limited immunity to health care providers from -suit and civil liability for any damages alleged to have been sustained by an act or omission‖ by the health care provider -during the period of the 

The rationales supporting this conclusion are both pragmatic and normative.

Pragmatically, if uncertain liability rules deter some health care providers from providing emergency health care services during an emergency, the public's most important interests are not served to the extent deterrence occurs. Further, because the flexible common law standard of care principle becomes more lenient in crisis conditions, statutory limited-liability rules do not reduce provider accountability substantially more than the common law rules do already-and arguably less than the other benefits bestowed on the public from eliminating the deterrent effect of uncertain rules. 34

A normative rationale is grounded in the principle of reciprocity. When society asks some of its members to take great personal risks in serving the public's interests, it is reasonable to expect society to assume some responsibilities for them in return for the risks assumed. 35 This reciprocal norm is most obviously evident in the relationship between society and members of the military-where society owes support to those who risk their lives to protect the homeland from national security threats. 36 In the case of health care providers working on the front lines during a pandemic, it is reasonable to expect society to make available to the providers the Nursing homes push for immunity from lawsuits as COVID-19 deaths top 20,000, Chic. Trib., May 4, 2020, https://www.chicagotribune.com/coronavirus/ct-nw-coronavirus-nursing-home-liability-20200504-wlu7rvu2xnd5bcezblpqa7exaq-story.html (accessed May 8, 2020). 34 In the absence of empirical evidence demonstrating the extent of the deterrent effect of uncertain liability rules in this context, see Prefatory Note, supra n. 32, this assertion is necessarily intuitive. 35 The scope of the health care provider's duty to treat during a pandemic raises enormously challenging questions, all of which are put squarely on the 1988 ) (providing that no -private person, firm or corporation and employees and agents‖ thereof -who renders assistance or advice at the request of the State‖ or political subdivision -during an actual or impending disaster‖ shall be -civilly liable for causing the death of, or injury to, any person‖; applies to any -public health emergency,‖ which is defined, inter alia, as -an occurrence or imminent threat of an illness or health condition that: (a) is believed to be caused by . . . (ii) the appearance of a novel or previously controlled or eradicated infectious agent or biological toxin,‖ § 3305/4); Colo. Stat. § 24-33.5-711.5(2) (2020)(Laws 2012, Ch. 240, § 10) (providing that -[s]uch persons and entities‖-referring to -each hospital, physician, health insurer or managed health care organization, health care provider, public health worker, or emergency medical service provider‖--that in good faith comply completely with board of health rules regarding the emergency epidemic and with executive orders regarding the disaster emergency shall be immune from civil or criminal liability for any action taken to comply with the executive order or rule‖); Tenn. Stat Table, https://www.networkforphl.org/wpcontent/uploads/2020/01/Legal-Liability-Protections-for-Emergency-Medical-and-Public-Health-Responses.pdf (accessed Apr. 9, 2020). 56 Hoffman, supra n. 30, at 1937-38. Although the federal has waived large parts of its immunity under the Federal Tort Claims Act, 28 U.S.C. § § 2671-2680 (2020), immunity is retained for situations involving -a failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government.‖ 28 U.S.C. § 2680(a). States have similarly limited sovereign immunity while retaining liability for state officials' and employees' discretionary decisions. 57 To illustrate, in City of Daytona Beach v. Palmer, 469 So.2d 121 (Fla. 1985) , the Florida Supreme Court held that a city who employed firefighters was immune from liability for discretionary actions and decisions made by the firefighters when combatting a fire. This is analogous to the immunity that extends to health care providers, acting under the authority of state law or as the agents of state officials, for discretionary decisions made when providing medical care during a public health disaster.

unfolded. As of August 2020, at least eleven states- New York, 58 New Jersey, 59 Kentucky, 60   Massachusetts, 61 Wisconsin, 62 Oklahoma, 63 North Carolina, 64 Kansas, 65 Iowa, 66 Utah, 67 and 58 On April 3, 2020, New York enacted the Emergency of Disaster Treatment Protection Act, N.Y. Pub. Health § 3080 (2020), which provides that -any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services‖ if three elements are satisfied: the care or services is rendered pursuant to a COVID-19 emergency rule, the care is arranged or provided -in response to or as a result of the COVID-19 outbreak and in support of the state's directives,‖ and the care is arranged or provided -in good faith.‖ 59 On April 14, 2020, New Jersey enacted a new statute providing that -a health care professional shall not be liable for civil damages or injury or death alleged to have been sustained as a result of an act or omission‖ when -providing medical services in support of the State's response to the outbreak of coronavirus disease‖ during the COVID-19 declaration of emergency, so long as the act or omissions does not constitute a -crime, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.‖ 2020 N.J. Sess. Law. Ch 18, Sen. No. 2333 (2020), https://legiscan.com/NJ/text/S2333/2020 (accessed Aug. 4, 2020). 60 Effective March 30, 2020, a Kentucky statute provides: -A health care provider who in good faith renders care or treatment of a COVID-19 patient during the state of emergency shall have a defense to civil liability for ordinary negligence for any personal injury resulting from said care or treatment, or from any act or failure to act in providing or arranging further medical treatment, if the health care provider acts as an ordinary, reasonable, and prudent health care provider would have acted under the same or similar circumstances.‖ 2020 Ky. Sess. Laws Ch. 73, S.B. 150, § 5(b). Section 5(b) essentially restates the common law rules of tort for medical malpractice, but explicitly extends the defense to health care providers who prescribe medicines for off-label use, who practice outside the professional scope of their practice, or use equipment or supplies outside of the product's normal use. Id. 61 Effective April 17, 2020, Massachusetts statutory law states that health care professionals and facilities -shall be immune from suit and civil liability for any damages alleged to have been sustained by an act or omission . . . in the course of providing health care services during the period of the COVID-19 emergency,‖ provided that the health care is being administered pursuant to the emergency and that the care or treatment was impacted by conditions resulting from the pandemic. Mass. Sess. Laws Ch. 64 (S.B. 2640), An Act to Provide Liability Protections for Health Care Workers and Facilities During the COVID-19 Pandemic, Apr. 17, 2020, https://malegislature.gov/Laws/SessionLaws/Acts/2020/Chapter64 (accessed Aug. 4, 2020). 62 Effective April 17, 2020, Wisconsin grants immunity to health care providers -for the death of or injury to any individual or any damages caused by actions or omissions‖ that were provided during the COVID-19 state of emergency or up to 60 days after its termination if such acts or omissions are rendered pursuant to the -direction, guidance, recommendation, or other statement made by a federal, state, or local official to address or in response to the emergency or disaster.‖ Wis. Stat. § 895.4801 (2020) (2019-20 Wis. Legis. Serv. 186). 63 Effective May 12, 2020, Oklahoma provides immunity to health care providers from civil liability for any loss or harm to a person with a suspected or confirmed diagnosis of COVID-19 if the act or omission -occurred in the course of arranging for or providing COVID-19 health care services for the treatment of a person who was impacted by the decisions, activities or staffing of, or the availability or capacity of space or equipment by, the health care facility or provider in response to or as a result of the COVID-19 public health emergency‖ and gross negligence or willful or wanton misconduct was not involved. Ok. Stat. Tit. 63, § 6406 (2020)(S.B. 300). 64 Effective May 4, 2020, a North Carolina statute provides that any health care provider or facility that arranges or provides services -pursuant to a COVID-19 emergency rule‖ -shall have immunity from any civil liability for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services only if all of the following apply‖: 1) the care is provided -in response to or as a result of the COVID-19 pandemic‖; 2) the care is -impacted, directly or indirectly . . . by a [facility's or provider's] decisions or activities in response to or as a result of the COVID-19 pandemic; and 3) the care is provided in good faith. N.C. Stat. § 90-21.133 (2020)(S.L. 2020-3, S.B. 704). 65 Effective June 9, 2020, Kansas law provides that -a healthcare provider is immune from civil liability for damages, administrative fines or penalties for acts, omissions, healthcare decisions or the rendering of or the failure to render healthcare services, including services that are altered, delayed or withheld, as a direct response to any

Alaska 68 -and the District of Columbia 69 had enacted COVID-19-specific limited immunities for health care providers, and it is likely that legislatures in additional states will join this group. 70 In addition, in some states, governors have issued executive orders extending liability protections in response to COVID-19. One of the early such orders was issued by Governor

Cuomo of New York, which, among other things, extended immunity to physicians and other health care providers from -civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State's response to the COVID-19 outbreak‖ unless it was

Arkansas. 85 At the federal level, Section 3215 of the CARES Act, 86 In a non-crisis environment, as long as the queue of patients is cleared and no one suffers as a result of being -demoted‖ or delayed when a concierge patient or VIP jumps ahead in the queue, the preference given to the privileged patient does not, at least as reasoned under existing consensus norms, violate principles of fairness or justice. See sources cited at nn. 77-78. Also, as the right to equal access to public goods is understood and implemented in the U.S., this differential treatment is not -unequal.‖ Rights to public goods are understood, at least as these values are operationalized in the U.S., as a right to a minimally defined packages of benefits, which are available to all equally without regard to income or status. After this minimum level of benefit is provided, individuals can purchase additional benefits, and the possibility of purchasing additional benefits, which is available only to those with a greater ability to pay, does not violate this understanding of equality. To illustrate, all citizens are entitled to police protection as a public good, but any individual who wishes to purchase a security system or security service on top of what the public fisc provides is entitled to do so. This is not the only definition of equality or just distribution possible, but at least as practiced in the U.S., equality does not require that all public goods be provided equally -all the way up.‖ Rather, the operative understanding of equality is that only that a minimum must be provided to all (with the quantity of that minimum entitlement being defined in the political process), with differential additional benefits beyond that minimum being allocated based on ability to pay. This rationalizes why preferential access to health care by the wealthy and other privileged persons is not considered per se unfair or unequal. As noted in the text, however, this analysis does not apply under conditions of scarcity where rationing occurs.

symptoms needed tests the most, the testing of fifty-eight celebrity NBA professional athletes based on the fact of their exposure violated this principle. 102 In August 2020, some professional sports leagues and university athletic conferences are attempting to resume competition safely by frequently testing athletes and coaches; this prioritization amidst a seriously deficient testing infrastructure for the general public is controversial. 103 therapeutics, and vaccines-should go first to front-line health care workers and others who care for ill patients and who keep critical infrastructure operating, particularly workers who face a high risk of infection and whose training makes them difficult to replace. These workers should be given priority not because they are somehow more worthy, but because of their instrumental value: they are essential to pandemic response. If physicians and nurses are incapacitated, all patients-not just those with Covid-19-will suffer greater mortality and years of life lost‖). colleagues, or to other influential people who have no direct role in the crisis response. 110 The slope on which these determinations are made is slippery, 111 but the core criteria 112 guiding prioritization are clear. 113 Wealth and status should not be used to ration health care services during a public health care crisis. 114 110 See Emanuel, supra n. 5 (-Priority for critical workers must not be abused by prioritizing wealthy or famous persons or the politically powerful above first responders and medical staff-as has already happened for testing. Such abuses will undermine trust in the allocation framework‖). 111 First responders-police and firefighters-should receive preference, as they are needed to maintain public order, preserve threatened facilities, and perform rescue during a crisis. The same can be said of National Guard and other members of the Armed Forces who are essential to disaster response and national defense. If being involved in providing -essential services‖ becomes the criterion for preferential ordering in triage, decision-making may become too complex for health care providers, with negative consequences for accuracy and fairness. The term -essential services‖ has its own difficulties, as it arguably reaches everyone involved in providing clean water, sanitation services (including garbage removal), hygiene products and services, communication support (telephone, Internet, media), public utilities and energy production (gas; electricity), food production, transportation, and sale, transportation (gasoline, road maintenance and repair, common carriers and their support), banking and related financial services, tax collection, payroll departments, and every business, activity, or government regulator upon which any of these depend. See Christopher C. Krebs, Memorandum on Identification of Essential Critical Infrastructure Workers During COVID-19 Response, available at Department of Homeland Security, CISA, https://www.cisa.gov/publication/guidance-essential-critical-infrastructure-workforce, (Mar. 28, 2020) (accessed Apr. 12, 2020). Arguably, only a small minority of industries and businesses (tourism, barber shops and salons, entertainment) are not essential. But the problem with giving priority to individuals in all -essential businesses‖ is that some states have included within the classification some businesses that clearly are not essential. See, e.g., Samantha J. Gross, Is pro wrestling an ‗essential business' in Florida? Gov. Ron DeSantis says it is, Tampa Bay Times, Apr. 13, 2020, https://www.tampabay.com/florida-politics/buzz/2020/04/13/is-pro-wrestling-an-essentialbusiness-in-florida-gov-ron-desantis-says-it-is/ (accessed Apr. 16, 2020); 112 Many commentators have sought to identify the values guiding rationing decisions in a pandemic. An excellent articulation synthesizing prior conceptualizations of allocation frameworks can be found in Emanuel et al., supra n. 5 (stating six recommendations; 1) maximizing benefits is most important; 2) interventions (testing, PPE, etc.) should go first to front-line health workers and those supporting them; 3) patients with similar prognoses should be treated equally and operationalized through random allocation; 4) priorities should change in response to changing scientific evidence; 5) those participating in research on vaccines and therapeutics should receive some prioritization; 6) no differences should exist between allocations for Covid-19 patients and those with other medical conditions, i.e., all patients needing resources should be considered for allocations equally). 113 See Repine et al., supra n. 108 (-The role of physician doing triage is conceptually very clear but is practically and ethically very complicated‖); Emanuel et al, supra n. 5 (-[E]ven well-designed [prioritization] guidelines can present challenging problems in real-time decision making and implementation. To help clinicians navigate these challenges, institutions may employ triage officers, physicians in roles outside direct patient care, or committees of experienced physicians and ethicists, to help apply guidelines, to assist with rationing decisions, or to make and implement choices outright-relieving the individual front-line clinicians of that burden. Institutions may also include appeals processes, but appeals should be limited to concerns about procedural mistakes, given time and resource constraints‖). 114 The same questions will arise with respect to prioritizing access to a COVID-19 vaccine once it becomes available. The same standards should apply, with the possible addition that those who volunteered for vaccine clinical trials should get some priority under the norm of reciprocity. See Jon Cohen, The line is forming for a COVID-19 vaccine. Who should be at the front?, Science, June 29, 2020, https://www.statnews.com/2020/05/23/when-a-covid-19-vaccine-becomes-available-who-should-get-it-first/ (accessed Aug. 7, 2020); Sandeep Jauhar, When a Covid-19 vaccine becomes available, who should get it first?,

In the final analysis, in a public health emergency like the COVID-19 pandemic where demand for health care surges past available supply, health care providers must make life-ordeath decisions about the rationing of health care services. This is their responsibility-not one they desire to own, but one they unavoidably inherit. When fulfilling this responsibility, they bear accountability for their decisions under existing standards of care, including the common law rules of tort and an array of federal and state statutes. These standards appropriately give health care providers much latitude when implementing triage and rationing decisions in good faith under emergency conditions. But accountability must never disappear, for without that, the public's trust in the profession would be lost. In time of crisis, trust is something none of us can afford to ration.

STAT, May 23, 2020, https://www.statnews.com/2020/05/23/when-a-covid-19-vaccine-becomes-available-whoshould-get-it-first/ (accessed Aug. 7, 2020).

The choice of criteria in these plans, including whether they promote fairness and equity, presents difficult and controversial questions

The Toughest Triage-Allocating Ventilators in a Pandemic, 382 N. Eng

5 (discussing how -limited time and information‖ available to those deciding priorities for allocation of scare resources during the COVID-19 pandemic justifies simplification of the rationing analysis, as -incorporating patients' future quality of life, and quality-adjusted life-years into [the] benefit maximization

Malpractice Liability and the Rationing of Care, 59 Tex. L. Rev. 1421, 1422 (1981) (-for the profession itself to recognize an ethical duty to ration care would fundamentally challenge the very meaning of professionalism-the physician's unequivocal

If it comes to rationing, I shouldn't have to be the one deciding who should live and who should die

Rationing Medical Resources: A Constitutional, Legal, and Policy Analysis, 59 Tex

See also Donna Levin

) (writing in the context of COVID-19, authors state that -HCWs who take significant risks to provide care to other are leery of subsequent lawsuits

Responders' Responsibility: Liability and Immunity in Public Health Emergencies

Soc'y to Governor Jared Polis, -Liability Protection Expansions for Health Care Professionals on the Front Lines of the Coronavirus Pandemic

state of disaster emergency declared [under state law]related to the COVID-19 public health emergency

an Iowa state states that -[a] health care provider shall not be liable for civil damages for causing or contributing, directly or indirectly, to the death or injury of an individual as a result of the health care provider's acts or omissions while providing or arranging health care

Utah statutory law states that -[a] health care provider is immune from civil liability for any harm resulting from any act or omission in the course of providing health care during a declared major public health emergency‖ for treatment of conditions that resulted in the declaration

Alaska excludes liability for any health care provider -who takes action based on a standing order issued by the [Alaska] chief medical officer . . . for civil damages resulting from an act or omission in implementing the standing order

District of Columbia exempts any -healthcare provider, first responder, or volunteer who renders care or treatment to a potential, suspected, or diagnosed individual with COVID-19 . . . from liability in a civil action‖ for damages or resulting from any act or failure to act in providing or arranging treatment. D.C. Code §

(in -Proposed Legislation (Bills), adv: -immune! liabil! /p -health emergency‖ coronavirus COVID-19 /p physician provider). Some states have enacted statutes that create immunities for transmission of COVID-19 on business premises (as might occur when a customer is on the premises) and sometimes on personal premises. These statutes have general applicability could be relevant to a claim arising out of an infection allegedly received in a health care establishment

stating that a person or agent -who conducts business in this state shall not be liable in a civil action claiming an injury from exposure or potential exposure to COVID-19‖)

during period of COVID-19 emergency declaration, essential businesses and emergency response entities -have immunity from civil liability . . . with respect to claims from any customer or employee‖ for injuries or death allegedly caused by -the customer or employee contracting COVID-19 while doing business with or while employed by the essential business‖). caused by the provider's -gross negligence.‖ 71 Similar executive orders have been issued by governors in Illinois

Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency

Executive Order in Response to COVID-19

Protection of Public Health and Safety During COVID-19 Pandemic and Response-Protections from Civil Liability for Healthcare Providers and Billing Protections for Patients

) (declaring that health care facilities with -emergency operation plans‖ that have -alternative standards of care‖ may implement those alternative standards

Order of the Governor of the Commonwealth of Pennsylvania to Enhance Protections for Health Care Professionals

The -Good Samaritan‖ Order: Protecting Frontline Healthcare Workers Responding to the COVID-19 Outbreak

declared all health care providers and facilities, first responders, and others -auxiliary emergency management workers,‖ which had the effect of bestowing civil liability immunities on them by virtue of Ga

) (declaring that during the pendency of the COVID-19 emergency proclamations, health care facilities, professionals, and volunteers are immune from civil liability for death or injury or property damage that -occurred at a time when the

Order 20-21, Increasing Hospital and Nursing Facility Capacity, Extending Statutory Immunity

) and affirming its applicability during the COVID-19 crisis to -health care workers providing community-based health care, services at surge hospitals and services in existing hospitals, nursing facilities and alternative nursing care sites‖)

) (extending immunities to health care providers and facilities responding to COVID-19, as first ordered in Exec

110 (2020), a longstanding statute declaring emergency management activities to be governmental functions with immunities and protections, to health care providers responding to the COVID-19 pandemic. Dec. of Emer. Dir. 011 (Nevada)

) (extending immunity to health care facilities and personnel for COVID-19 health emergency response efforts)

Certain-Immunity-From-Liability-For-Healthcare-Providers-in-Response-to-Novel-Coronavirus-(COVID-19).pdf (accessed Aug. 4, 2020), reinforces statutory immunities for health care providers when responding to public

Governor Whitmer issued and then extended an executive order granting immunity to any licensed health care professional or health care facility providing services in support of the state's response to the pandemic, but then rescinded the order on

requested -health care providers‖ generally to respond to the COVID-19 pandemic, and declared that all such providers would have immunity from civil liability under Ark

The immunity does not apply if the care is -willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the individual harmed,‖ or the health care professional was -under the influence [as determined by state law] of alcohol or an intoxicating drug

Triage of mass casualties in war conditions: realities and lessons learned

COVID-19 pandemic: triage for intensive-care treatment under resource scarcity

Articulating allocation standards that are recognized as -fair‖ and -equitable‖ by all affected parties is an elusive undertaking

Celebrities get virus tests, raising concerns of inequity

Preferential coronavirus testing of NBA athletes, celebs ‗100% wrong

Is It a Problem that Sports Gets Fast Test Results and You Don't?

But Is It Ethical?

Is It a Problem that Sports Gets Fast Test Results and You Don't?

As sports return, experts fear leagues will use up scarce COVID-19 testing resources

Who Should Be Saved First? Experts Offer Ethical Guidance

Rigal and Pons discussion of triage pertained to soldier and civilian casualties during -wartime conditions.‖ Although their discussion rejects ability to pay (i.e., concierge medicine) as a criterion for preference in triage, it is not clear that their discussion reaches all questions of status-i.e., whether generals or political leaders responsible for supervising the war effort, individuals in the supply chain for supporting the war effort

Jerry LaForgia, former health specialist for the World Bank)