FORCED TRIAGE -- Allocating Life Saving Ventilators in the COVID Crisis

The patients most severely affected by the COVID-19 virus are unable to breath on their own and require ventilator machines. With infections on the rise, hospitals face the problem of demand outpacing the limited supply. How do hospitals and medical workers decide who gets the chance at extended life and who does not? We asked Harvard Law Professor Glenn Cohen about this process known as "forced triage" and to explain the legal risks to health workers that it raises. Professor Glenn Cohen is one of the world's leading experts on the intersection of bioethics (sometimes also called "medical ethics") and the law, as well as health law. He is the faculty director of the Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics at Harvard. ► http://www.talksonlaw.com for more legal explainers and interviews with the titans of law. ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw See Also: New York Times Op-Ed: Protect the Doctors and Nurses Who Are Protecting Us Journal of the American Medical Association: Potential Legal Liability for Withdrawing or Withholding Ventilators During COVID-19Assessing the Risks and Identifying Needed Reforms ____________________ TRANSCRIPT (abridged due to YouTube limits) As the COVID crisis progresses, there are fewer and fewer ventilators available for people who need them. What happens when we have a shortage? Can physicians and nurses withhold or withdraw ventilators from people who are unlikely to recover? I’m Glenn Cohen. I’m a professor at Harvard Law School who specializes in the intersection of law and medicine. As you can imagine right now during the COVID pandemic, there’s a lot of very difficult legal and ethical issues being raised. One of the most difficult, I think, has to do with the impending shortage of ventilators. When that happens, what do you do? Well the first thing to understand is something called triage protocols. The important thing to understand is there’s some pretty distinct principles. One of those principles is the idea of focusing on trying to save the largest number of lives. Another is the idea of saving the largest number of life years. The third principle has to focus on instrumental value, in particular, front line health care workers. And then a fourth principle sometimes used as a tie-breaker in these instances is called age weighting. All other things being equal, we want to give as many people as possible the chance to live a full life. That means people who have had lots and lots of years of life would be given less priority than those who are young. So, what happens if a physician has to withdraw or withhold a ventilator? So first thing to know is there is a possibility—a low risk, but a possibility—of criminal charges, and in fact, we have a precedent for this during the Hurricane Katrina instances, where some physicians were charged in emergency situations because of their activities with a criminal charge, a charge of murder. In fact, the grand jury refused to indict, but that is a real risk. If a physician encounters this, they may have available what’s sometimes called a necessity defense. This idea, sometimes called choice of evils, is that you are entitled to engage in an activity if in fact it prevents a much greater harm. But that’s going to be quite tricky in the COVID case because, first of all, many states don’t include killing as an activity you can do under a necessity defense. The hope here is that prosecutors’ offices will affirmatively state ahead of time that any physician that complies with a triage protocol in good faith will not be prosecuted. Beyond criminal liability, there’s also tort liability: negligence, malpractice, also hospital negligence, and some forms of vicarious liability for hospitals. Here among the interesting questions is whether there is a different standard of care when you’re talking about emergency medicine. So ordinarily, we think when you are charged with or when someone sues you for negligence or malpractice, we look to see whether you breached the applicable standard of care. Will that standard of care be different when you’re talking about a shortage of ventilators, for example, and emergency medicine? That’s a question that we’re going to have to wrestle with. Another question has to do with causation and damages. If in fact you can show that the patient likely would have died even if we’d kept them on the ventilator, then that might defeat a claim of negligence against a hospital or against a physician or against a nurse. But these are the kinds of things that I think legitimately might keep physicians and nurses up at night, and in the case of pandemics, we really want to immunize them as much as possible. I’d love to see more states thinking about what they can do to help protect nurses and doctors.