Key Takeaways
- Hospitals usually set their own triage protocols, often weighing lives saved, life-years saved, the role of frontline health workers, and sometimes age as a tiebreaker.
- Withholding or withdrawing a ventilator during a shortage carries a low but real risk of criminal charges and malpractice suits, and the necessity defense may not fit neatly.
- State immunity laws, published crisis standards of care, and federal disability-rights rules now shape how triage decisions can lawfully be made.
When more patients need ventilators than there are machines to go around, who decides who gets one? And can the physicians and nurses who make that call be prosecuted or sued?
In this TalksOnLaw Brief, Glenn Cohen, Deputy Dean and the James A. Attwood and Leslie Williams Professor of Law at Harvard Law School and faculty director of its Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, explains how triage protocols work and the legal exposure facing clinicians who must withhold or withdraw life support during a shortage.
How Triage Protocols Work
Professor Cohen explains that most triage rules are set hospital by hospital, but they draw on a few distinct principles. One is saving the largest number of lives. Another is saving the most life-years, so a ventilator might go to a patient likely to live 40 more years rather than one likely to live one more year. A third looks to instrumental value, particularly frontline health care workers, because a system that loses its workers will have a much harder time coping with a pandemic. A fourth, sometimes used as a tiebreaker, weighs age: all else equal, the goal is to give as many people as possible the chance to live a full life, which can give younger patients priority.
The Risk of Criminal Charges
The risk of prosecution, he says, is low but real. He points to Hurricane Katrina, when medical providers were charged with murder over emergency decisions; a grand jury declined to indict. A clinician might invoke the necessity, or choice-of-evils, defense, which permits conduct that prevents a much greater harm. But he notes it is tricky here: many states do not allow necessity as a defense to killing, and moving a ventilator from one patient to another may trade one harm for the same harm rather than prevent a greater one. His hope is that prosecutors will state ahead of time that any physician who complies with a triage protocol in good faith will not be prosecuted.
Malpractice and Hospital Liability
Beyond criminal law, he identifies negligence and malpractice claims, hospital negligence, and vicarious liability. Open questions include whether the standard of care differs in emergency conditions, and causation: if the patient likely would have died even on the ventilator, a negligence claim may fail. He praises Maryland for a strong statute and attorney general opinion protecting good-faith compliance with state triage guidance, and urges other states to act.
What to Know Now
Many states took up that call. Governors and legislatures adopted protections for providers acting in good faith under emergency conditions, though some were later narrowed or repealed; New York, for example, repealed its broad Emergency or Disaster Treatment Protection Act in 2021. The federal PREP Act also provides immunity for losses tied to covered countermeasures, such as COVID-19 vaccines, drugs, and devices. Federal civil rights law has become central as well. The HHS Office for Civil Rights warned in 2020 that triage plans may not discriminate on the basis of disability or age, and its 2024 Section 504 rule bars measures that discount the value of extending a life because of disability, a limit that bears on life-years scoring. A group of states has challenged parts of that rule, and litigation continues. Many states now publish crisis standards of care for future emergencies, and the principles Professor Cohen outlines remain the vocabulary of that planning.
