key: cord-0926921-egq3d0i9
authors: Brown, Teneille R
title: When The Wrong People Are Immune
date: 2020-05-08
journal: J Law Biosci
DOI: 10.1093/jlb/lsaa018
sha: efc02dc367ca7a4441668638647b303e1f6f6e03
doc_id: 926921
cord_uid: egq3d0i9

After a disaster such as the COVID-19 pandemic, there will be an irresistible desire to blame others. Despite documented failures in the federal government’s response to the pandemic, injured individuals will not be able to hold it accountable due to the broad application of governmental immunity. Congress and state governments have provided targeted immunity to various device manufacturers and emergency volunteers. However, the one group with huge targets on their backs are individual physicians, who are often making impossible choices that are reasonable at the time, but might not appear reasonable to a jury after the fact, and with the bias of hindsight. Recognizing that the potential for liability might cause undue psychological stress on health care providers, this essay argues for statutory immunity that protects them from rationing and other health care decisions that are made in good faith, and that are in compliance with documented state, institutional, or professional pandemic-response guidelines.

After a disaster such as the COVID-19 pandemic, there will be an irresistible desire to blame others. People will attribute intentionality to actions that were purely accidental and deem people careless for failing to prevent unforeseeable harms. 2 Even assessments of causation will be influenced by whether we think someone acted selfishly. 3 We will blame our neighbors for going to the grocery store without wearing masks. We will blame those who hoarded pallets of toilet paper. We will blame the Chinese. We will blame the broken health care system. We will blame the physician who ignored our appeals for a ventilator for our dad. After so much death, we may even blame God. The post-mortems will frustratingly attempt to identify the cause of this catastrophe, as if there were that simple.

Hopefully, in the midst of this powerful need to blame, we will not forget who the primary target of our outrage should be-our federal executive branch. We are only midway through the crisis, and it is already quite clear that the president's response has been nothing short of reckless. 4 He has made a number of notable missteps that may have exacerbated the death toll; to make this plain I will canvass just a few of them here. Rather than immediately using the Defense Production Act to order companies to produce needed tests and medical

supplies, the president downplayed the seriousness of the virus. 5 The failure to immediately develop testing capacity led directly to an inability to conduct effective contact tracing. When tests were initially developed by the Centers for Disease Control (CDC), they were determined to be contaminated due to sloppy laboratory procedures. 6 Other laboratories began developing reliable tests for the virus, but the CDC wanted to be the sole source, and Federal Drug Administration (FDA) regulations that required emergency use authorization were slow to be approved. 7 These initial testing failures allowed the virus to quietly spread among the many who are asymptomatic. 8 Due to the termination of the senior director for global health security and biodefense in 2018, there has not been a coordinated, authoritative federal response. 9 Doctors have complained that they are not looking to the CDC for trustworthy data, and are instead relying on more informal networks and non-governmental publications. 10 The president also frequently misstated the availability of testing, leading people to bombard their local health care facilities for tests that they did not have. 11 Regarding treatment, the President later claimed that the FDA had approved a -game-changer‖ drug (hydroxychloroquine), despite the FDA later correcting that the drug was still being tested for 5 Zolan Kanno-Youngs and Ana Swanson, Wartime Production Law Has Been Used Routinely, but Not With Coronavirus, NY TIMES, March 31, 2020, available online at https://www.nytimes.com/2020/03/31/us/politics/coronavirusdefense-production-act.html 6 Sheila Kaplan, C.D.C. Labs Were Contaminated, Delaying Coronavirus Testing, Officials Say, NY TIMES, April 18, 2020, available online at https://www.nytimes.com/2020/04/18/health/cdc-coronavirus-lab-contamination-testing.html 7 Bob Ortega, Scott Bronstein, Curt Devine, and Drew Griffin, How the government delayed coronavirus testing, CNN, April 9, 2020, available online at https://www.cnn.com/2020/04/09/politics/coronavirus-testing-cdc-fda-red-tape-invs/index.html 8 David Frum, This is Trump's Fault, April 7, 2020, The Atlantic, available online at https://www.theatlantic.com/ideas/archive/2020/04/americans-are-paying-the-price-for-trumps-failures/609532/ 9 Liz Alesse, Did Trump try to cut the CDC's budget as Democrats claim?: ANALYSIS, ABC NEWS, Feb. 28, 2020, available online at https://abcnews.go.com/Politics/trump-cut-cdcs-budget-democrats-claim-analysis/story?id=69233170 (-The president fired the pandemic specialist in this country two years ago,‖ former NYC mayor Michael Bloomberg said. 

He then claimed he had -total‖ authority to mandate a premature reopening of the state economies, which went against his health expert's advice, and notably the U.S. Constitution. 19 When armed individuals in Michigan, Minnesota, and Virginia protested the continued social distancing orders and closure of non-essential businesses, he appeared to encourage insurrection, tweeting -LIBERATE VIRGINIA, and save your great 2nd Amendment. It is under siege!‖ 20

Lamentably, despite being the primary mistake-maker here, the federal government itself will enjoy broad immunity, and will be essentially protected from any tort liability related to its COVID-19 response. The concept of sovereign immunity derives from English law, where it was assumed that -the King can do no wrong.‖ 21 Since the thirteenth century, the English monarchy could not be sued unless it agreed to waive immunity. The concept was somewhat clumsily borrowed and applied to our federal and state governments in the United States, despite our emphatic rejection of an unaccountable Crown.

There are principled justifications to federal sovereign immunity. Namely, the separation of powers supports executive agency policy decisions being protected from being secondguessed by the courts. 22 Immunity may also be defended on instrumental grounds, as the government's motive is to protect the general welfare, and not to maximize profits and avoid liability. 23 While these claims have merit, there are even more powerful counterarguments, that 2433 (1990) (holding that a state's invocation of sovereign immunity when the petitioner alleges colorable Fourth Amendment claims violated the supremacy clause of the Constitution). Section 233(a) of the Public Health Service Act -grants absolute immunity to PHS officers and employees for actions arising out of the performance of medical or related functions within the scope of their employment by barring all actions against them for such conduct.‖ See, Hui v. Castaneda, 559 U.S. 799, 806 (2010); In some cases, even a Bivens remedy is precluded, such as when public health service officers or employers are sued under the Public Service Act.

discretionary duty that was breached, she would likely still lose due to the common law -public duty‖ doctrine.

The public duty doctrine holds that because governments owe a duty of care to every citizen, they do not owe a duty to any one particular citizen. 35 Both state and federal courts have interpreted this to mean that government officials such as emergency responders cannot be sued in tort when they fail to perform their duties, such as sending aid in response to a 911 call. If there was no direct contact or assurance of aid to a particular individual, then there was no duty for the dispatcher, for example, to perform her functions. 36 The public duty doctrine has astonishing consequences, and often insulates the police, emergency responders, and many state agencies from being accountable for their negligence or wrongdoing. There is nothing to suspend this doctrine during public health emergencies, and in fact, the emergency situation is likely to expand its application.

To summarize, as a result of both the discretionary function exception and the public duty doctrine, we can expect that injured individuals will not be able to seek adequate legal recourse from our federal or state governments for their failure to respond appropriately to the pandemic.

Thus, one of the only ways the federal government will be accountable for wrongdoing will be if the president suffers political consequences in the next election. Relying solely on political accountability is worrisome, however.

For one, political accountability has been significantly watered down in the last decade, in part due to almost unlimited corporate money in political campaigns, 37 and the distortions of

representation in the electoral college 38 . This is also fueled by information asymmetry; we cannot assume that the electorate has the bandwidth to pay attention to the many conflicting news stories and evidence of political wrongdoing. Political accountability requires a great deal of focus and time that many voters simply do not have. This may be in part why it has taken considerable presidential mismanagement to move the needle at all. The president's approval ratings were at an all-time high despite some major mistakes in his response to COVID-19. They only very recently have started to decline. 39 Importantly, however, even if the president suffers significant political consequences from his mishandling of the pandemic, almost none of this will trickle down to the agency executives or career bureaucrats who did his bidding. While political accountability in theory provides a check on shoddy political decision-making, it provides a very weak check on agencies. 40 This is sometimes by design 41 .

Perhaps most important of all, political accountability, even if perfect, does absolutely nothing to compensate those who were individually injured by executive recklessness. The need to compensate injured parties provides the strongest basis for removing immunity. If government is responsibly conducting their risk benefit analyses, there will not be many plaintiffs seeking compensation. But the complete lack of a remedy for carelessly inflicting personal harm flies in the face of our democratic principles of government. April 21, 2020 , available online at https://www.usnews.com/news/best-states/utah/articles/2020-04-21/utahbuys-malaria-drugs-touted-by-trump-panned-by-doctors 46 The Utah statute places the burden on the individual patients, by suggesting that so long as they provide informed consent, immunity is appropriate for prescribing unapproved medications. This appears to be linked with the -Right to Try‖ movement. However, there are sound reasons why we do not permit individuals to be treated with medications that are not proved as safe or effective, even if an individual's cost-benefit analysis skews toward welcoming greater risk, and we certainly should not absolve providers from liability when their off-label use is negligent. See, Abigail All. for Better Access to Developmental Drugs v. Von Eschenbach, 373 U.S. App. D.C. 386, 389 (2006) 

On March 27 th , the president signed the -Coronavirus Aid, Relief, and Economic Security Act‖ (CARES Act) into law. 47 The Act provides broad liability immunity for companies that manufacture respiratory protective devices. It also preempts state law to immunize volunteer health care workers from tort liability for negligence in actions or omissions in the course of providing volunteer health care services related to The constitutionality of the latter preemption will no doubt be challenged, as the states typically regulate intrastate tort liability. Indeed, most states already immunize volunteer health care workers for carelessness when they respond to an emergency. 49 Even so, the immunity provisions in the PREP and CARES Acts speak to Congressional recognition that the fear of liability might stymie our pandemic response, both at the state and federal levels.

Of all of the predictable defendants to be sued after a pandemic, there is one group that is glaringly absent from this list: non-volunteer health care workers. 50 Even when they work for a state hospital, nurses and physicians are typically not protected under the state's governmental immunity, as they -exercised medical judgment, regardless of whether it related to policy decision.‖ 51 As parties will be looking for someone to hold accountable for the terrible outcomes 58 Other protocols prioritize short-term clinical factors, but then suggest using life-cycle considerations as a tiebreaker, with priority going to younger patients. 59 There is a robust debate occurring about the ethics and potential illegal discriminatory impacts of these policies. 60 The purpose of this article is not to advocate for a particular framework, but rather to provide legal immunity for physicians who make decisions in compliance with a documented policy. 61 If an institution has no documented policy, and leaves rationing up to the individual decision, they expose both the physician and the institution to legal liability from discriminatory or substandard decisions. Implementing a policy that complies with anti-discrimination law is prudent in these situations to reduce this risk. There are only so many physicians and nurses, and only so many beds. The possibility of a medical malpractice lawsuit will do nothing to prevent the need to ration. If there is only 1 ICU bed available, and ten patients vying for it, the possibility of ex post tort liability will not instantly create nine more beds. Perhaps if the government could be accountable for this failure, more beds and ventilators could be produced or reallocated from regions that are not as hard hit by COVID-19. But the physicians on the frontlines cannot be expected to create additional resources while fighting this pandemic. The normal incentives of deterrence will thus not work to create better rationing or to remove the need for rationing. Indeed, the possibility of liability will only make the necessary rationing more discriminatory and unfair, as physicians cater to the loudest, wealthiest, or most educated patients who fight the hardest, and who seem most likely to 

There will be many institutional policies related to COVID-19 that will expose individual physicians to liability, and these instances may be even more common than the need to ration scarce resources. Physicians are being instructed by their states, professional associations, and In addition to taking extra precautions during procedures, physicians are also being instructed by their employers to reschedule or cancel cancer, heart, and lung interventions that they think can wait several weeks. This is done both to reduce the risk of the immune- 1913, 1926 (2008) . 65 Cath Lab Digest, Data Shows Reduction in U.S. Heart Attack Activations During COVID- 19 Pandemic, April 10, 2020, available online https://www.cathlabdigest.com/content/data-shows-reduction-us-heart-attack-activations-during-covid- 19pandemic 

weeks before having a tumor resected or fluid drained. It is possible that patients who had a delayed diagnosis or treatment might sue the physicians who made this call, if it turns out not to have been clinically appropriate for them. While these decisions might all be perfectly reasonable during a pandemic, the fear (or reality) of having to defend these utilitarian decisions in court might add undue stress on the physicians who are doing their best to follow state or institutional policy. 66 The value of immunity comes not just from rejecting the second-guessing of emergency decisions that were thrust upon an overwhelmed industry. There is also considerable value in giving physicians peace of mind that the forced choice between two terrible possibilities will not later be penalized in court.

During normal times, emotions run high when a loved one is denied medical treatment or injured during a procedure. The resulting break-down of communication may lead to a lawsuit, as many people will be unhappy with how resources were rationed or decisions made. Under ordinary circumstances, a physician may be liable for a clinical judgment that could foreseeably cause a patient's death. However, these are not ordinary circumstances, and health care providers are being asked to make impossible decisions that may aid our ability to respond to COVID-19, but which might increase the risk to individual patients. There is often no third option that avoids putting a particular patient at risk to help others. Immunity is appropriate in these situations where the providers' decisions are objectively reasonable and defensible ex ante, and for which there would be great psychological value in removing the possibility of suit.

While it might seem unlikely that many families will sue, as they should appreciate that the extenuating circumstances of the pandemic, not all families will be so understanding or

reasonable. 67 To be sure, there may be greater distrust of physician decision-making and increased incentives to sue in the wake of this pandemic, as people are more isolated and anxious, and may be suffering from severe economic instability. Additionally, as the social distancing measures cities and states have adopted to -flatten the curve‖ are working, the lack of a big surge in infections as was seen in New York might anger those patients who assume that the precautionary measures were not necessary. 68 Given this, we can expect that some number of families will claim that a physician who denied their family member treatment, or performed a procedure differently due to COVID-19

precautions, caused them a compensable injury. Depending on the circumstances, a judge and jury may agree. Causation and breach are not discoverable facts of nature, but rather are morally laden and susceptible to hindsight bias. 69 Hindsight bias could be particularly severe here. Cases would not be litigated until long after the chaos of the pandemic has subsided, which might permit juries to forget just how extenuating the circumstances appeared to be ex ante. Therefore, even if physicians were doing their best at the time to fairly allocate resources and follow institutional policies, a jury could find them liable for making an intolerable choice that caused harm. Indeed, even if the possibility of an award is remote, the very prospect of this possibility may create unfair and paralyzing fear for physicians, who as a group already overestimate the risk of being sued. 70

This article advocates for removing the possibility of a medical malpractice claim for individual physicians and independent health care providers, when they are complying with published state, professional, or institutional COVID-19 policies in good faith. Ideally, as part of any emergency response packages that are passed, legislatures should either develop, or require hospitals to develop, protocols for rationing ventilators, ECMO machines, ICU beds, and personnel. It would be best if the policy were mandatory at the state level, to encourage cooperation between health care facilities. 71 Further, and more to the point, when enacting these statutes, legislatures should incorporate tort immunity for health care workers who comply with COVID-19 treatment protocols in good faith. In the absence of a state directive, this article also advocates for immunity for individual physicians when they comply with a recognized professional organization's guidance related to COVID-19, or institutional policies related to their COVID-19 response. This is not merely to limit the liability of a powerful group. It is to recognize the unbearable situation that health care workers face during a pandemic, which is not at all of their own creation. It is also to recognize that certain decisions might appear unreasonable ex post, but they were not unreasonable ex ante. Health care providers are under an inordinate amount of stress as they expose themselves to a serious or deadly disease, often while working incredibly long hours. The extenuating circumstances of a pandemic necessitate immunity for physicians who are doing their best to bravely make critical decisions, with imperfect information, . One way to do this would be to require gross negligence or more before a physician could be liable for refusing someone hospital resources, rather than immunizing them from negligence only when their conduct was reviewed as -reasonable.‖ The reasonability review embedded in medical futility statutes guts them of their immunity protection and removes the desired peace of mind they are intended to bestow.

their end-of-life plans, to discourage only certain groups from refusing life-sustaining treatment, should emphatically not be immunized from tort liability. 75 Further, given our experience with medical futility statutes, it would be prudent to afford clearer protection from suit than what the medical futility statutes typically provide. 76 For examples specifically targeted at providing physicians immunity in response to a pandemic, we can also look to laws in effect in Maryland and New York.

At least wo states have passed targeted immunity laws, which would protect paid health -that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune 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.‖ 80

The immunity does not attach if the injury was caused by gross negligence, but it is otherwise much broader than the Maryland statute. For one, it provides immunity for actions that are not performed in accordance with any state public health directive, but are rather just -in support‖ of the state's response. It also provides for immunity in non-emergency situations. A 

that a physician acted with an intent to kill, then a criminal action seems completely appropriate.

A civil action also seems appropriate, if unlikely, where a plaintiff can make out a prima facie claim that the physician acted with gross negligence or worse. Immunity should only cover negligence claims to strike the right balance between protecting physicians and compensating plaintiffs who were clearly wronged. Denying actions for criminal, or grossly negligent actions provides too much immunity and has the potential to absolve, or even encourage, bad actors. remain liable for policy decisions they implement, this might be unsatisfactory as it is harder for a plaintiff to prove that a policy, as opposed to an individual physician's decision, violated the standard of care. This is a risk, but one that seems justified to ensure that immunity is not overly broad to protect decisions that might be unreasonable, even given the pandemic.

Ideally, the cost of making difficult decisions during a pandemic should not fall on individual patients. Those who are injured by others' carelessness should have some legal resource when they are wronged. But our powerful desire to correct a potential injustice, and to

shift the cost elsewhere, should not come at the expense of holding individual health care workers responsible for decisions that were reasonable ex ante. There is great risk of hindsight bias, where juries might forget the very real and conflicting pressures physicians were facing, especially if communities do not experience the overwhelming surges that were predicted.

The summary judgment standard of -no reasonable juror could find breach‖ provides a good guide for tailoring immunity to those situations where it can do the most good and the least harm. Immunity laws recognize that even if a plaintiff is properly denied recovery at the summary judgment stage, getting to this point imposes considerable emotional and financial costs on the individual physicians. In addition to having to review case files, be deposed, and Physicians did not create this pandemic situation. While they are intimately involved in its mitigation, these heroic efforts should not expose them to unnecessary malpractice liability, merely because government immunity makes them the last target standing.

Our state and federal governments should be accountable, as public health agencies and government figures have a moral and legal duty to protect their citizens and prepare for health emergencies. 83 There is a possibility that the federal government could waive immunity for personal injury related to its response to the pandemic. Following the threat of a previous H1N1 pandemic, Congress passed the Swine Flu Act, which created a private right of action against the U.S. from injuries resulting from swine flu inoculation. 84 Or, the government could set up a compensation fund for families adversely affected by rationing decisions. While removing immunity-where the government acted recklessly or in ways that abused its discretion-would be a sensible way to provide accountability, it also seems politically quite unlikely.

We can hope for some political recourse, as the executives and their agencies that failed to prepare or respond may be removed from office. However, for the reasons described above, this is an enormously imperfect check. Crucially, it provides no remedy for the parties who are injured by carelessness or wrongdoing. If a corporation develops a defective product that injures We are learning many lessons from this pandemic, some welcome and some not. One lesson we might take away from this is the need for better remedies against government officials when they completely fail to perform their public duties. The time has come to pass legislation that more significantly waives immunity in line with our democratic ideals. Now, more than ever, we must fight the dangerous notion that our leaders are kings.

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Keeping the Arms in Touch: Taking Political Accountability Seriously in the Eleventh Amendment Arm-of-the-state doctrine

A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings

This author also supports immunity on corrective justice grounds, as -the government passes its legal costs along to the taxpayers

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Healthcare Workers Who Have Died of COVID-19

The psychological impacts of treating COVID-19 patients have proved to be devastatingly real. See, Eric Levenson, Stress on health care workers is creating 'second victims' in the coronavirus pandemic

Care of the Critically Ill and Injured During Pandemics and Disasters: CHEST Consensus Statement, 146 CHEST e61S-74S (2014) Policies vary, and could advocate for prioritization based on different grounds, such as need, equity, or protecting the most vulnerable. See, James Tabery, et al., Ethics of Triage in the Event of an Influenza Pandemic, 2 DISASTER MED PUBLIC HEALTH PREPAREDNESS

A Framework for Rationing Ventilators and Critical Care Beds During the COVID

CDPHE All Hazards Internal Emergency Response and Recovery Plan: Annex B: Colorado Crisis Standards of Care Plan

This proposal does nothing to alter liability under federal statutes such as 42 US Section 1983, or anti-discrimination law, such as that contained in Section 1557 of the Affordable Care Act

Liability claims can and do flow from emergencies, illustrated by ongoing civil litigation against Dr

Salt Lake County Mayor Jenny Wilson says social distancing measures are working in flattening the curve, ABC4 News

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Proximate Cause Explained: An Essay in Experimental Jurisprudence, forthcoming in the UNIVERSITY OF CHICAGO LAW REVIEW

Physicians' Perceptions of the Risk of Being Sued

Governor Cuomo issued an order revising an education law to provide 75 A policy that permitted categorical age discrimination would violate Section 1557 of the Affordable Care Act

Medical Futility States: no safe harbor to unilaterally refuse life-sustaining treatment, 75 TENN

Protect the Doctors and Nurses Who Are Protecting Us

While immunity statutes provide a clear signal to plaintiffs' attorneys, especially the majority of them working on a contingency fee basis, that they are quite likely to lose and not be paid, there may still be some who fail to internalize that risk and sue. There does not seem to be a principled way to remove this risk

Legal Preparedness: Care of the Critically Ill and Injured During Pandemics and Disasters: CHEST Consensus Statement, 146 CHEST e134S