By Zachary E. Shapiro
After COVID-19 reached the United States, New York City quickly became the epicenter of the pandemic. Clinicians at New York Presbyterian Hospital-Weill Cornell Medical Center turned to the Clinical Ethics Consultation Service to help meet the ethical challenges that arose. During the surge, the Ethics Team saw a marked increase in the volume of consultations for individual patients in the hospital, and took part in over 2,500 informal consultations with caregivers. Discussions centered around a wide range of ethical issues distinct from those that come up in routine practice. As one of the only lawyers in the Division of Medical Ethics at Weill Cornell Medical College, I encountered a myriad of legal concerns presented by the pandemic.
During the height of the surge in New York, there was no formal legal guidance available to clinicians concerning medical practice during a pandemic. Questions about legal immunity abounded, as unclear state and federal guidance left many doctors worried that they were taking personal and professional risks by providing care to COVID-19 patients.
The pandemic forced doctors to shift away from traditional standards of care in terms of resuscitation, patient care, and surrogate decision-making. The ethics team had to take new dynamics into account, such as the risk of infection to doctors and staff, and balance these factors in the risk/benefit calculations for treatments and interventions. Undertaking these shifts without federal or state guidance caused significant distress and concern. It often seemed that the law was not only not helpful, but an active hindrance to medical practice, as many health care workers were consumed by worry about the prospect of future liability. This concern persisted, even though the deviations in the standard of practice were necessitated by the realities of the pandemic overwhelming our health care system.
While there was a promise of limited civil and criminal immunity in the New York State budget under the Emergency Disaster Treatment Protection Act, this guidance was unclear, and health care workers were unsure as to which actions would be protected, and which could subject them to future claims of malpractice. As weeks passed, and the Department of Health (DOH) declined to promulgate guidance, it became clear that this promised immunity provided little solace to exhausted workers, traumatized by their inability to save most of their patients.
Another closely related issue was prioritization of scarce resources, as no triage protocol was advanced by New York State or the Federal Government, leaving hospitals to set their own policies. Since many hospitals did not advance concrete triage protocols, doctors were left to exercise their best judgment in the face of looming shortages. The Ethics Division worked on the formation of triage committees to support clinicians’ decision-making regarding ventilator allocation and resuscitation. However, since no crisis standard of care was articulated by the DOH in New York and no state guidance was ultimately forthcoming, the triage committees were never activated.
Without formal guidelines, clinicians worried that they would be left “holding the buck” after the pandemic, as they were often operating outside the bounds of normal practice. As a lawyer, I found it startling that there were no formal guidelines concerning allocation of intubation teams and mechanical ventilation, or criteria for how to best distribute medical resources that became scarce, such as negative pressure rooms and personal protective equipment (PPE). While Ethics provided consultations, and helped to mitigate risks when appropriate, our responses were limited by the absence of insight into what New York State, the Federal Government, or the courts, would consider “proper care” during a pandemic.
The pandemic exacted a terrible mental health cost on health care workers. The constant reconfiguration and reassignment of staff, paired with the volume of extremely sick and dying patients, led to an increasing sense of moral distress amongst front-line clinicians. This distress manifested as profound grief, sadness, frustration and fear, as well as intense worry, as many health care workers articulated feelings of burnout and abandonment, describing a sense of having been left to deal with the crisis on their own. We may not yet have seen the full mental health toll this crisis has taken on frontline health care workers, who are at risk of suffering from post-traumatic stress disorder after going through such a harrowing and intense experience.
When I think of how health care will be changed by this pandemic, I keep coming back to the question of how the law can better support health care workers. In a crisis, law must be anticipatory, or it will be burdensome. Most health care workers I talked to, during the surge and afterwards, felt that the law was actively detrimental to their thinking, as legal uncertainty contributed to significant feelings of concern, which amplified the trauma of daily work in makeshift ICUs.
Moving forward, it is imperative that clear and relevant regulations, guidelines, and guidance are available proactively, rather than responsively. Supporting doctors and health care workers during times of crisis requires making concrete plans in advance for the worst case scenarios, even if we are lucky enough to never have to implement them.
One of the best ways to support health care workers during a novel pandemic is to ameliorate concerns related to malpractice or future prosecution. Beyond immunity, clear crisis practice guidelines must be articulated; work that implicates states, hospitals, professional societies, and the Federal Government. Clear guidance will allow health care workers to feel supported and less like they are making decisions on their own. In the absence of formal guidance, hospital systems must step up to more explicitly support and protect their staff during times of crisis, as society is relying on these health care workers.
In a crisis, reducing the uncertainty faced by health care workers will improve their resiliency and ability to handle increased demands, helping ameliorate some of the mental health cost wrought by practicing medicine in dire circumstances. At its best, law can help provide this assurance, clarity, and safety, so that health care workers can focus on their jobs, and not spend time worrying about unknown consequences.
At 7 p.m. each night during the surge, the streets of New York City rang out with cheers and applause, meant to honor and support the health care and frontline workers fighting COVID-19. When considering the surge, and examining where the law fell short in supporting health care workers, the lesson is clear: we must ensure that necessary legal scaffolding is in place before a pandemic is raging through the health care system. This work is the next step of our endeavor, the evolution from symbolic gesture to meaningful change, so that society can help to more fully support health care workers going forward.
Zachary E. Shapiro, JD, MSc is a Senior Research Scholar and Senior Advisor at The Solomon Center for Health Law & Policy at Yale Law School; a Post-Doctoral Fellow in the Division of Medical Ethics at Weill Cornell Medical College; and Co-Chair of the Hospital Ethics Committee at The Rockefeller University Hospital.
This post is part of our digital symposium, In Their Own Words: COVID-19 and the Future of the Health Care Workforce.