By Valerie Gutmann Koch
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.