LOMBARDIA, ITALY - FEBRUARY 26, 2020: Empty hospital field tent for the first AID, a mobile medical unit of red cross for patient with Corona Virus. Camp room for people infected with an epidemic.

Pandemic Guidelines, Not Changed Malpractice Rules, Are the Right Response to COVID-19

By Valerie Gutmann Koch, Govind Persad, and Wendy Netter Epstein

On March 17, the Washington Post published an op-ed by Dr. Jeremy Faust, titled Make This Simple Change to Free Up Hospital Beds Now. In it, he argues that cities and states should “temporarily relax the legal standard of medical malpractice,” in order to encourage hospitals to admit, and physicians to treat, the patients who need help during the COVID-19 pandemic.

In a tweet promoting the piece, Dr. Faust expresses concern that in the absence of such a legal change, “docs will keep doing ‘usual’ low yield admissions.”

And on March 23, the Governor of New York issued an executive order suspending state law to make all health care providers “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, unless it is established that such injury or death was caused by the gross negligence of such medical professional.”

We agree with Dr. Faust that cities and states should work to alleviate doctors’ uncertainty about malpractice liability when providing appropriate medical care to patients during the COVID-19 pandemic.

But they should do that not by redefining malpractice, like New York State did this week, but by activating and publicizing pandemic response plans, like New York State’s 2015 Ventilator Allocation Guidelines, which authorize the prioritization of patients for scarce resources based on their capacity to benefit from treatment.

Because these protocols depart significantly from standard non-emergency medical practice, states should formalize these plans, thereby providing some degree of legal protection — perhaps immunity — for following them. Such an approach provides clearer guidance than vaguely “relaxing” the definition of medical malpractice.

Importantly, many legal experts agree that the common law legal standard of care is adaptable to changing circumstances, and therefore would adjust to the necessities of medical care in a pandemic. No proposal, including ours and Dr. Faust’s, can prevent patients from filing lawsuits.

But in public health emergencies, hospitals and physicians are ethically obligated, as the AMA recognizes, to prioritize patients who can most benefit.

Empirical research suggests doubt about the efficacy of changed malpractice definitions in affecting physician behavior.

In contrast, activating and disseminating pandemic guidelines, combined with legal protections, may effectively offer hospitals and physicians peace of mind in treating COVID-19 patients (and others) while protecting patients from substandard care. Recommendations like ours may eliminate concerns about physician and institutional reluctance to follow triage protocols and pandemic preparedness plans that could save the most lives.


Govind Persad

Professor Persad’s research interests center on the legal and ethical dimensions of health insurance, health care financing (both domestic and international), and markets in health care services, as well as professional ethics and the regulation of medical research. He has been selected as a 2018-21 Greenwall Faculty Scholar in Bioethics for an ongoing research project on health insurance and protection against financial risk. His articles have appeared or will appear in the George Washington Law Review, Emory Law Journal, Boston College Law Review, and Yale Journal of Health Policy, Law, and Ethics, among others. He was selected as a Health Law Scholar in 2017 and as a BioIP Scholar in 2018 by the American Society of Law, Medicine and Ethics.

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