Forced Triage: Allocating Ventilators and Legal Liability in the COVID Crisis

As the COVID crisis progresses, there are fewer and fewer ventilators available for people who need them. What happens when we have a shortage? Can physicians and nurses withhold or withdraw ventilators from people who are unlikely to recover? What kind of legal liability might attach if they did so?

I’m Glenn Cohen. I’m a professor at Harvard Law School who specializes in the intersection of law and medicine.

As you can imagine right now during the COVID pandemic, there’s a lot of very difficult legal and ethical issues being raised. One of the most difficult, I think, has to do with the impending shortage of ventilators. We’ve seen in places like Italy, we may reach a point here in the United States—in fact, we’re likely to—where the needs of people to get ventilators will be greater than the available ventilator supply. When that happens, what do you do?

 Well the first thing to understand is something called triage protocols. So how are these things done? Well, in fact, most of the rules are done at a hospital-by-hospital level. And the important thing to understand is there’s some pretty distinct principles. One of those principles is the idea of focusing on trying to save the largest number of lives. Another is the idea of saving the largest number of life years. That means you want to give a ventilator to somebody who is likely to live for forty years rather than someone who’s going to live for only one year. The third principle has to focus on instrumental value, in particular, front line health care workers. If you have all of your health care workers dying, you’re going to have a much harder time coping with the COVID pandemic and indeed, many people who are health care workers might be unwilling to help. And then a fourth principle sometimes used as a tie-breaker in these instances is called age weighting. All other things being equal, we want to give as many people as possible the chance to live a full life. That means people who have had lots and lots of years of life would be given less priority than those who are young.

With that understood, now you might be going to yourself, “What happens if a physician has to withdraw or withhold a ventilator? What kind of liability is there?” So first thing to know is there is a possibility—a low risk, but a possibility—of criminal charges, and in fact, we have a precedent for this during the Hurricane Katrina instances, where some physicians were charged in emergency situations because of their activities with a criminal charge, a charge of murder. In fact, the grand jury refused to indict, but that is a real risk. If a physician encounters this, they may have available what’s sometimes called a necessity defense. This idea, sometimes called choice of evils, is that you are entitled to engage in an activity if in fact it prevents a much greater harm. But that’s going to be quite tricky in the COVID case because, first of all, many states don’t include killing as an activity you can do under a necessity defense, and also, if you’re just moving a ventilator from one patient to another, you might think you’re not preventing a greater harm but the same kind of harm. The hope here is that prosecutors’ offices will affirmatively state ahead of time that any physician that complies with a triage protocol in good faith will not be prosecuted. 

Beyond criminal liability, there’s also tort liability: negligence, malpractice, also hospital negligence, and some forms of vicarious liability for hospitals. Here among the interesting questions is whether there is a different standard of care when you’re talking about emergency medicine. So ordinarily, we think when you are charged with or when someone sues you for negligence or malpractice, we look to see whether you breached the applicable standard of care. Will that standard of care be different when you’re talking about a shortage of ventilators, for example, and emergency medicine? That’s a question that we’re going to have to wrestle with. Another question has to do with causation and damages. If in fact you can show that the patient likely would have died even if we’d kept them on the ventilator, then that might defeat a claim of negligence against a hospital or against a physician or against a nurse.

But these are the kinds of things that I think legitimately might keep physicians and nurses up at night, and in the case of pandemics, we really want to immunize them as much as possible. One state, Maryland, has a very strong statute in place, in an attorney general opinion, that immunizes against criminal and civil liability for good faith compliance with a state-mandated, or in fact likely, a state guideline for triage. And I’d love to see other states thinking about what they can do to help protect nurses and doctors because if they don’t, I think the risk of liability is low, to be clear, but there is a risk there, and I don’t want physicians and nurses to be thinking about that when they’re making these incredibly painful choices.

I’m Glenn Cohen. That was a quick overview on legal and ethical issues with triage. Thank you for watching.