key: cord-0736827-cs2bqvd4
authors: Mareiniss, Darren P.
title: Doctors Could Face Significant Legal Liability if We Reallocate Ventilators
date: 2021-05-18
journal: J Emerg Med
DOI: 10.1016/j.jemermed.2020.10.058
sha: 275fc1a09afea83786e2cccafd8671c6b99c04d6
doc_id: 736827
cord_uid: cs2bqvd4

nan

the dose-response to bupivacaine-induced asystole in rats. Anesthesiology 1998;88:1071-5. 6 (1) . In so doing, he activated broad powers to respond to the public health crisis. During a declared disaster, the Governor can suspend regulations, control the ingress and egress (entry and exit) of people, seize property, control the movements of the population, and utilize the police to make arrests (2). Such powers are expansive and designed to respond to public health crises and disasters. Of note, the constitutionality of the Pennsylvania orders is being challenged in the courts (3). However, many states have similarly broad emergency powers that have been deemed constitutional previously. Pennsylvania's Governor, exercising these powers, also signed an executive order granting immunity from liability for health care providers responding to the COVID-19 pandemic (4). This order protected providers from assertions of liability, with the exception of willful and reckless acts of negligence, when treating patients with COVID-19 during the declared emergency (4) . For doctors responding to the pandemic, this sounded like a pretty reasonable measure, given the fact that our resources might be stretched to the brink, depending on the spread of the virus. Also, Philadelphia specifically is known to be a hotbed of medical malpractice litigation and has been so for years. It was only appropriate that doctors, already risking their lives to treat patients not have the threat of lawsuits hanging over our heads as well.

However, the protections created by the Governor's order might not be sufficient to protect doctors in specific situations in the future. For example, the expected fall/winter wave will likely be even more challenging than the spring wave of disease. In addition, seasonal influenza, respiratory syncytial virus, and pneumonia, which typically create patient surges in the fall and winter, will be exacerbated by COVID-19. It will likely tax our resources and health care capacity. If we run out of ventilators during the next wave of disease (which is very possible), we might need to allocate them to the patients most likely to benefit/live (5, 6) . This would be in an effort to save the most lives with our limited resources. Pennsylvania, like many other states, has created guidelines for allocating and reallocating ventilators if such an eventuality occurs (6) . However, with respect to reallocationdremoving the ventilator from 1 patient and giving it to another with a better prognosisdthere is limited legal protection. Removing a ventilator from a critically ill patient and thus causing foreseeable harm or the death of that patient could be considered a willful and reckless act under the law (4). Accordingly, it is unlikely that these reallocation decisions would be covered under the Governor's liability protection order. In fact, such reallocation decisions would not be covered by most existing immunity laws for disaster response. Legal experts and ethicists noted this previously (5, 7, 8) . To remedy this liability risk, some states have created special laws protecting doctors from suit or prosecution for ventilator allocation decisions they make. Both Maryland and Virginia have such laws; Pennsylvania does not (9, 10) .

Under current liability immunity protection in most jurisdictions, triage doctors would not be protected if they reallocated ventilators against a patient's or patient's proxy's will (5) . In addition, criminal charges of manslaughter or criminal negligence could possibly be asserted for reallocating a ventilator against a patient's or proxy's will (5) . This is because the action, again, could foreseeably cause the death of the patient. Although doctors do discontinue ventilation at the patient's or patient's proxy's requests, the legality of this act is based on the patient's right to refuse treatment (11, 12) . In the instance of reallocation, the ventilator would be taken from the patient ostensibly against their wishes or consent.

Given the significant liability risk, all state governments should consider modifying their respective emergency orders and laws to protect doctors making these decisions. Notably, the legislatures could consider creating a statute specifically protecting good faith triage allocation during a declared disaster. As stated above, Maryland and Virginia have created such protections (9, 10) . Another potential solution is to declare that triage doctors are agents of the state during a disaster. This could be done by either an executive order or legislative promulgation, and could impart qualified immunity to triage doctors (13) . This immunity is usually extended to state agents (such as government officials) when they exercise their duties reasonably and in good faith. As a result, triage doctors would be protected from civil and criminal liability when they make difficult reallocation decisions. Without any specific protections or immunity, the physicians who make these reallocation decisions will be exposed to significant liability risk. 

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