Medical Rationing: Putting the Greatest Good to the Test?

Womble Bond Dickinson
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Womble Bond Dickinson

[co-author: Daniel Meckley]

Womble Bond Dickinson

Image for postPhoto by Samuel Scalzo on Unsplash

Medical rationing is not something Americans are accustomed to, but COVID-19 may soon change that. As local hospitals become overwhelmed with COVID-19 patients, they may reach the point where they have to make grim decisions over which patients receive limited medical supplies such as a ventilator or an intensive-care bed, and who does not. The Salt Lake Tribune reported on October 25, 2020 that, due to the number of new COVID-19 cases, Utah hospitals may need to begin rationing care in less than two weeks. At least some providers and medical institutions have questioned what the legal ramifications are if they opt to withhold limited treatments or supplies in a pandemic like COVID-19. Does this expose them to malpractice or other civil or criminal liability without governmental guidance? Are they afforded the same immunities from liability they are usually afforded, such as Good Samaritan laws?

Traditionally, medical ethics has centered on promoting the well-being of individual patients, but the COVID-19 pandemic may force difficult decisions to be made. Even though “how” these difficult decisions will be made are not generally known to the public, the discussions among medical experts are not new and, in fact, have been debated amongst the medical and public health community for years. After 9/11, the CDC encouraged agencies responsible for health care policy to prepare guidelines for just such situations. In 2005, the U.S. Department of Health and Human Services (HHS) developed the HHS Pandemic Influenza Plan to prevent, control, and mitigate the effects of influenza viruses that pose high risk to humans. This Pandemic Influenza Plan was updated in 2017 and as of that year, every state had developed its own pandemic influenza plan. All of these state guidelines are grounded in ethical obligations that include the duty to care, duty to steward resources, distributive and procedural justice, and transparency. Consistent with accepted standards during public health emergencies, the primary goal of the allocation framework is to maximize benefit to populations of patients, often expressed as doing the greatest good for the greatest number.

One of the key items necessary for implementing these guidelines is the provision that the governor or state health commissioner formally directs hospitals to follow them by issuing a catastrophic health emergency. This lessens the likelihood of civil and criminal actions against the physician or medical facility. However, it should be noted that even though these guidelines are broadly accepted by medical ethicists, they have not previously been implemented or tested through the courts.

Regardless of how a court may rule in a case concerning medical rationing procedures, it is critical for providers to educate patients and their families about how these guidelines can affect the course of care in this unprecedented time. Additionally, clinicians should proactively engage in discussions regarding do-not-intubate orders for high-risk subgroups of patients before their health deteriorates. It has been well researched that education and open communication between physicians and their patients and families has been shown to lower the potential for litigation, particularly when the patient or family member feels a connection with their healthcare provider and believes he or she is doing their best.

Coupling education with governmental directives for medical rationing should mitigate the risk of litigation. It will be interesting to see how directives are implemented at the state level, should that become necessary.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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