By Valerie Gutmann Koch
Since the onset of the COVID-19 pandemic, clinicians and policymakers alike have raised the alarm about potential legal liability for following crisis standards of care.
Liability protections may be necessary when, due to the circumstances of the emergency, a state faces scarce resources (such as ventilators or ICU beds) and the state activates its crisis standards of care (CSC). A CSC authorizes the legal prioritization of patients for scarce resources based on changing circumstances and increased demands. CSCs provide a mechanism for reallocating staff, facilities, and supplies to meet needs during a public health emergency.
Notably, and by necessity, the standard of care that clinicians may be able to provide during the COVID-19 pandemic may depart significantly from standard non-emergency medical practice. In a non-crisis setting, the prevailing medical standard of care focuses on the needs of each individual patient and is centered on the principle of informed consent. In a public health emergency, however, such concentrated care may be impossible or inadvisable due to: (1) resource limitations and (2) the goal of saving as many lives as possible.