As the COVID-19 pandemic progresses, hospitals and critical care practitioners are increasingly likely to face one of the hardest decisions that they will ever have to make: how to allocate scarce resources and treatments, including ventilators, among patients when there are not enough available to treat everyone.
It is critical for hospitals to act now, before resource allocation decisions become necessary, to establish policies and teams that can guide triage decisions in an ethical manner, in accordance with law and the applicable standard of care.
Importantly, even during the current crisis, there is no statutory immunity or protection from liability under Ohio or Federal law that would apply to hospitals and practitioners when making triage and scarce resource allocation decisions. Hospitals, individual practitioners, and other providers may be subject to liability in connection with decisions made to ration care and treatments for patients, including under legal theories such as medical malpractice, negligence and wrongful death. While hospitals and their licensed practitioners may have no choice but to make these decisions, this risk highlights the need to have policies in place which will guide those decisions in a consistent, legal and ethical manner.
Hospitals should adopt a multi-disciplinary approach to medical triage and resource allocation that includes input from medical staff members, clinical leadership, administration and subject-matter experts such as clergy, legal counsel, and medical ethical advisors. Such decisionmakers should be proactively convened and managed, at the highest level of hospital administration, to develop strategies for resource allocation. They should seek to identify triggers and thresholds to assist the hospital in anticipating patient care needs, and when resources may not be readily available.
Several critical issues must be considered in developing resource allocation policies and when determining factors that will go into making triage decisions. For example, how will the hospital work with other facilities to determine whether resources are available elsewhere, and how can patients be transferred when those resources are available? Alternatively, can additional resources be obtained, such as ventilators, from a central supply? Further, if resources are not available elsewhere, and the number of patients who need a particular intervention (such as a ventilator) exceeds the hospital’s supply, how will this scarcity be managed? All options should be explored in a manner that is consistent with federal law and state-wide plans for resource allocation and pandemic emergency management.
Further, the policy must ensure that no medical treatment decisions will be made on the basis of a patient’s race, color, gender, gender identity, religious affiliation, sexual orientation, age, national origin, disability or any other factor prohibited by law. As the U.S. Department of Health and Human Services, Office of Civil Rights noted in a March 28, 2020 bulletin to covered health care providers, “Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence,” and reminds providers of their obligations under federal law to protect the civil rights of patients at all times. “Persons with disabilities, with limited English skills, or needing religious accommodations should not be put at the end of the line for health services during emergencies.”
To assist hospitals in developing resource allocation and triage policies consistent with the above considerations, the Ohio Hospital Association has released its initial Guidelines for Allocation of Scarce Medical Resources. This resource can provide a good starting point for hospitals to develop their own resource allocation and triage policies and procedures. However, it will be absolutely necessary for each hospital or health system to make its own individualized decisions about how best it can allocate scarce resources while maintaining the appropriate standard of care consistent with its legal and ethical obligations. The time to start this process is today.
Please contact Frantz Ward’s healthcare attorneys Craig Haran or Brad Reed for assistance in preparing and developing a resource allocation and triage policies during the ongoing COVID-19 pandemic and public health emergency.
Frantz Ward’s Coronavirus Response Team to assist clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners Brian Kelly or Christopher Koehler and they will engage the appropriate members of the response team. In addition, please visit the Frantz Ward Coronavirus Daily Update/Resource Center for up-to-date information and links.